Note: Please keep me informed about current negotiations for Title IV-E adoption assistance and the outcomes of state administrative hearing decisions involving the negotiation of Title IV-E adoption assistance agreements.
On October 1, 2009, I e-mailed, Lewis George, Chief Legal Counsel for the Ohio Department of Job and Family Services (ODJFS) asking him two basic and related policy questions:
1. Did ODJFS have a legal responsibility to enforce state administrative hearing decisions?
2. Assuming that ODJFS, as the designated state IV-E agency, had such a responsibility, what steps would it take if a county agency did not comply with a lawful hearing decision and order.
As you can readily see in the exchange of e-mails, Mr. George did not really answer the policy questions, even after I presented reasons why I believed that ODJFS not only had an obligation to enforce state administrative hearing decisions, but placed the state’s federal IV-E funding at risk if it failed to do so.
Mr. George, after suggesting that he could not answer my questions because each case “had a different fact pattern," offered to work with my in resolving noncompliance by county agencies if I obtained the permission of the appellate adoptive parents. I thanked him and accepted his offer, but also insisted that that the hearing process itself was designed to resolve substantive disagreements in individual cases. My questions, on the other hand, involved basic and answerable policy matters that are essential to the well being of special needs adoptive children.
To this date, I have received no further response from Mr. George on pending individual cases or the broader policy questions.
E-Mail to Mr. Lewis George, October 1, 2009
I am writing to pose a series of questions. Is ODJFS legally responsible for enforcing state administrative hearing decisions and administrative review decisions involving the negotiation of adoption assistance agreements? If so, what actions must be taken if a county does not comply within stated timelines or refuses to comply at all? I assume that ODJFS has a number of options, including contact with County Commissioners and ultimately the withholding of federal funds. Is that your understanding?
Please respond to my questions in a timely fashion. They have important consequences for special needs adopted children and for the integrity of the federal IV-E adoption assistance program. The longer that negotiation of adoption assistance requirements are ignored and not enforced, the faster the program will reach a crisis point.
You have perhaps seen my arguments. Here they are again. As you know, when adoptive parents appeal a decision regarding the negotiation of an amount of adoption assistance and prevail, the hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child needs and family circumstances as prescribed in state and federal law. Most hearing orders contain a time frame for compliance.
For example, in the Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), the reviewing officer found against Clinton County and ordered the agency to negotiate with the adoptive parents. In issuing the order, which was signed by the Head of ODJFS Office of Legal Services, the reviewing officer noted:
The agency is the one with the expertise to make this initial judgment, but it is clear that its judgment has been clouded by extraneous factors because the subsidy figures in the record thus far defy explanation. For example, the agency paid your previous adoptive family $600 per month, but then reduced its initial offer to you to $450, then reduced it further to $300 when it appeared that no agreement was forthcoming. While we agree with the hearing officer in principle that the previous payment of $600 does not necessarily set either the floor or ceiling in your case, at the very least the agency has some obligation to explain a halving of this amount in your current household. Further, if its offer of $450 was justified at an early stage of your negotiations, how have your needs and circumstances now changed to merit a reduction of that amount by another one-third? For these reasons, we agree with the Statement of Error based on misapplication of rule.
To this date, October 1, 2009, no negotiations have taken place. In Delaware County, no negotiations have taken place following two hearings, the first which took place in 2006.
At least one parent has been told that there is nothing ODJFS can do to enforce hearing decisions when the county refuses to comply. I cannot see how this can be the case for the following reasons.
1. The Code of Federal Regulations at 45 CFR 205.10 guarantees applicants and recipients of Title IV-E adoption assistance due process rights. There is no due process when counties are free to ignore adverse hearing decisions.
2. Federal laws pertaining to the obligations of states under IV-E state plan requirements indicate that the IV-E agency (ODJFS) has full responsibility for oversight and consistent administration of the adoption assistance program.
Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—
(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;
(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;
Surely, enforcement of hearing decisions is included in the above oversight requirements.
Finally, counties that refuse to comply with hearing decisions are violating Ohio law. Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.” Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.”
Tim O'Hanlon
Response from Lewis George to: What Are The Obligations Of ODJFS To Enforce State Administrative Hearing Decisions Regarding The Negotiation Of Adoption Assistance Agreement? October 6, 2009
Mr. O'Hanlon:
I have received and read your email dated October 1, 2009, and as we discussed, when we met in person, I appreciate your passionate views regarding this subject. My opinion continues to be that these cases are best resolved on a case by case basis. As you are aware, each case is
different based on the fact pattern.
The Ohio Department of Job and Family Services will be happy to discuss and answer any questions you may have regarding specific cases pending state hearings based on receipt of the federal IV-E adoption assistance program. However, you would need to provide evidence of your authorization to represent the families in those specific cases prior to any information being shared or discussed. Again, I encourage you to provide specific case information so that we may all work together to resolve any issues.
Sincerely,
Lewis George, Chief Legal Counsel
Tim O’Hanlon 's Response to Mr. George, October 6, 2009
Dear Mr. George,
Thank you for your offer. I think I will take you up on it. You should be hearing from at least two adoptive parents soon.
I do think, however, that there is a clear difference between the merits of individual cases and the important policy questions:
1. Does ODJFS have a legal responsibility to enforce state administrative hearing decisions, administrative review decisions, which have been decided on the merits, if the county agency does not comply? I believe that the obvious answer is yes.
As the state's IV-E agency, ODJFS should be able to define its responsibility to enforce state administrative hearing decisions involving Title IV-E adoption assistance. The hearing and administrative appeal decisions decide the merits of the appeal. The question of ODJFS' obligations to ensure adequate due process is a general policy issue which sets the context for the resolution of individual appeals.
2. The next question is a bit more complicated, but still capable of an answer. What steps may and will ODJFS take to enforce hearing and administrative review decisions in cases of county non-compliance. At heart, this question asks, what will ODJFS do to ensure the due process assured adoptive parents in federal law?
If these questions are not addressed, a number of county agencies will feel free to completely ignore hearing decisions and orders, especially ones involving the negotiation of adoption assistance agreements. As non-compliance increases, the integrity of the program is diminished and ODJFS places its access to IV-E funding at risk.
Tim O.
Tuesday, October 27, 2009
ODJFS Legal Services Chief Fails to Answer Inquiry About the State's Legal Obligation to Enforce Adminstration Hearing Decisions
Thursday, September 17, 2009
Will the Ohio Department of Job and Family Services Enforce State Adminstrative Hearing Decisions Against Counties?
I ask parents and advocates to e-mail officials at the Ohio Department of Job and Family Services (ODJFS) and ask them what actions they will take to enforce hearing decisions when the county agency refuses to comply. See the suggested language below. One county described below is openly defying an Administrative Review Order by the ODJFS Legal Services Director to re-0pen IV-E adoption assistance negotiations with an adoptive family. A parent in another county reported that the agency has thus far refused to comply with two sets of hearing orders, the first dating back to 2006.
In previous posts, I have expressed concern about the following:
1. Ohio County agencies refusing to negotiate Title IV-E adoption assistance agreements over $240 per month in light of budget cuts in the state financial participation rate which went into effect on September 1, 2009. In previous posts, I have argued that counties taking this position are in violation of federal and state laws.
2. Although the appeals of adoptive parents in opposition to such county policies have been and will continue to be successful, will the Ohio Department of Job and Family Services (ODJFS) enforce hearing decisions which order counties to continue negotiations until a fair and adequate agreement for adoption assistance is reached.
3. As county agencies step up resistance to the lawful negotiation of adoption assistance agreements, there will be a concomitant growth in the defiance of hearing orders.
Clinton County's Refusal to Comply
I received an e-mail from a adoptive parent reporting that after several months, Clinton County has refused to enter into Title IV-E adoption assistance negotiations. The county is defying both state administrative hearing decisions and an administrative appeal signed by the head of the Office of Legal Services at ODJFS.
Citing Section 8.2D.4 of the federal Child Welfare Manual the ODJFS legal services reviewers wrote.
"Although it may be tempting in these trying financial times to also take into account the agency’s other financial circumstances, that factor is not part of the rule other than the overall ceiling of the maximum foster care payment limit. In fact, the federal agency overseeing the program has opined that 'Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements.' "That agency has also opined as follows:
'Title IV-E adoption assistance is not based upon a standard schedule of itemized
needs and countable income. Instead, the amount of the adoption assistance
payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.
The circumstances of the adopting parents must be considered together with the
needs of the child when negotiating the adoption assistance agreement.
Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment.'" (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE).
The administrative reviewers issued an "order of compliance" to schedule another negotiation and "absent any agreement with you on a subsidy amount retroactive to your application, issue written notification to you setting forth in detail the manner in which its subsidy offer satisfies your needs and your family’s circumstances."
The agency has refused to take any action in spite of contact from the Bureau of State Hearings at ODJFS. The adoptive parent wrote she was informed by Bureau of State Hearing Staff that there was nothing ODJFS could do to enforce its hearing decisions.
I have registered my strong disagreement with this position in previous posts.
The Responsibility of ODJFS to Enforce State Administrative Hearing Decisions
Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.”
Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.” When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis in fact or in law, it is clearly defying Ohio law.As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.
Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—
(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law; . . . .
(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders.
The Code of Federal Regulations at 45 CFR 205.10 guarantees due process appeal rights to adoptive parents. The right to a hearing is meaningless if county agencies are free to defy hearing orders without fear of consequences.
ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties. Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.
Please Write ODJFS and Other Officials
Please pose the following issue. Clinton County is openly in defiance of an Administrative Review Order issued by the ODJFS Office of Legal Services on June 23, 2009. (Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The appellant parent has been told that there is noting ODJFS can do about it. The refusal to enforce administrative hearing decisions makes a mockery of the due process rights guaranteed under Code of Federal Regulations 45 CFR 205.10. It violates ODJFS' own state administrative hearing rules and the IV-E State Plan responsibilities provided in federal law at 42 U.S.C. 671. Federal IV-E funding is contingent on the performance of these responsibilities.
As adoptive parents of special needs children we have the right to ask and receive a clear response to the question of what specific actions ODJFS will take to enforce state administrative hearing orders against non-compliant county agencies. Our children's well being is at stake and we deserve a prompt response.
Contacts
Sandra Holt, Deputy Director ODJFS Child and Family Services, Sandra.Holt@jfs.ohio.gov,
Charles Preston, Governor's Office, charles.preston@governor.ohio.gov,
Lewis George, Director, Office of Legal Services, lewis.george@jfs.ohio.gov,
Bob Frankart, Senior Attorney, Office of Legal Services, bob.frankart@jfs.ohio.gov,
Donna Vargo, Head, ODJFS, Bureau of State Hearings, donna.vargo@jfs.ohio.gov,
Armond Budish, Ohio House Majority Leader <district08@ohr.state.oh.us>,
Wiiliam Batchelder, Ohio House Minority Leader <district69@ohr.state.oh.us>,
Ted Celeste, Ohio House Representative <district24@ohr.state.oh.us>
Josh Kroll, North American Council on Adoptable Children Subsidy Specialist, joshk@nacac.org
The Problem
In previous posts, I have expressed concern about the following:
1. Ohio County agencies refusing to negotiate Title IV-E adoption assistance agreements over $240 per month in light of budget cuts in the state financial participation rate which went into effect on September 1, 2009. In previous posts, I have argued that counties taking this position are in violation of federal and state laws.
2. Although the appeals of adoptive parents in opposition to such county policies have been and will continue to be successful, will the Ohio Department of Job and Family Services (ODJFS) enforce hearing decisions which order counties to continue negotiations until a fair and adequate agreement for adoption assistance is reached.
3. As county agencies step up resistance to the lawful negotiation of adoption assistance agreements, there will be a concomitant growth in the defiance of hearing orders.
4. To this point, there is no evidence that ODJFS has taken any action to enforce hearing decisions against non-compliant county agencies. Worse still, there is some evidence that ODJFS has no intention of taking enforcement action and maintains the position that it lacks the authority to enforce state adminstrative hearing decisions. I believe that this view would come as surprising news to federal officials at the Adminstration for Children and Families.
Clinton County's Refusal to Comply
I received an e-mail from a adoptive parent reporting that after several months, Clinton County has refused to enter into Title IV-E adoption assistance negotiations. The county is defying both state administrative hearing decisions and an administrative appeal signed by the head of the Office of Legal Services at ODJFS.
Citing Section 8.2D.4 of the federal Child Welfare Manual the ODJFS legal services reviewers wrote.
"Although it may be tempting in these trying financial times to also take into account the agency’s other financial circumstances, that factor is not part of the rule other than the overall ceiling of the maximum foster care payment limit. In fact, the federal agency overseeing the program has opined that 'Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements.' "That agency has also opined as follows:
'Title IV-E adoption assistance is not based upon a standard schedule of itemized
needs and countable income. Instead, the amount of the adoption assistance
payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.
The circumstances of the adopting parents must be considered together with the
needs of the child when negotiating the adoption assistance agreement.
Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment.'" (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE).
The administrative reviewers issued an "order of compliance" to schedule another negotiation and "absent any agreement with you on a subsidy amount retroactive to your application, issue written notification to you setting forth in detail the manner in which its subsidy offer satisfies your needs and your family’s circumstances."
The agency has refused to take any action in spite of contact from the Bureau of State Hearings at ODJFS. The adoptive parent wrote she was informed by Bureau of State Hearing Staff that there was nothing ODJFS could do to enforce its hearing decisions.
I have registered my strong disagreement with this position in previous posts.
The Responsibility of ODJFS to Enforce State Administrative Hearing Decisions
Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.”
Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.” When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis in fact or in law, it is clearly defying Ohio law.As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.
Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—
(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law; . . . .
(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders.
The Code of Federal Regulations at 45 CFR 205.10 guarantees due process appeal rights to adoptive parents. The right to a hearing is meaningless if county agencies are free to defy hearing orders without fear of consequences.
ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties. Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.
Please Write ODJFS and Other Officials
Please pose the following issue. Clinton County is openly in defiance of an Administrative Review Order issued by the ODJFS Office of Legal Services on June 23, 2009. (Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The appellant parent has been told that there is noting ODJFS can do about it. The refusal to enforce administrative hearing decisions makes a mockery of the due process rights guaranteed under Code of Federal Regulations 45 CFR 205.10. It violates ODJFS' own state administrative hearing rules and the IV-E State Plan responsibilities provided in federal law at 42 U.S.C. 671. Federal IV-E funding is contingent on the performance of these responsibilities.
As adoptive parents of special needs children we have the right to ask and receive a clear response to the question of what specific actions ODJFS will take to enforce state administrative hearing orders against non-compliant county agencies. Our children's well being is at stake and we deserve a prompt response.
Contacts
Sandra Holt, Deputy Director ODJFS Child and Family Services, Sandra.Holt@jfs.ohio.gov,
Charles Preston, Governor's Office, charles.preston@governor.ohio.gov,
Lewis George, Director, Office of Legal Services, lewis.george@jfs.ohio.gov,
Bob Frankart, Senior Attorney, Office of Legal Services, bob.frankart@jfs.ohio.gov,
Donna Vargo, Head, ODJFS, Bureau of State Hearings, donna.vargo@jfs.ohio.gov,
Armond Budish, Ohio House Majority Leader <district08@ohr.state.oh.us>,
Wiiliam Batchelder, Ohio House Minority Leader <district69@ohr.state.oh.us>,
Ted Celeste, Ohio House Representative <district24@ohr.state.oh.us>
Josh Kroll, North American Council on Adoptable Children Subsidy Specialist, joshk@nacac.org
Monday, September 14, 2009
Crawford County Threatens to Cut Title IV-E Existing Adoption Assistance Payments and Stop Negotiating Future Adoption Assistance Agreements
Crawford County has sent letters adoptive families with Title IV-E adoption Assistance essentially informing them they may receive a $60 per month cut in their children’s adoption assistance payments in the wake of the state’s reduced financial participation in the federal Title IV-E adoption assistance program from monthly payments of up to $300 to monthly payments of $240. Taking a page out Lorain County’s play book, Crawford also asks adoptive parents to sign an amended IV-E adoption assistance agreement. (See a copy of the letter below). Finally, the agency signals that it might be able to negotiate future adoption assistance payments over $240 per month.
The letter, after apologetically requesting that parents voluntarily absorb the reduction in adoption assistance ends by stating “This modification may be reflected in your October 2009 check.” Further, “If you do not agree to do this reduction, you do have the right to appeal this to the State;. . .” I urge parents to respond. Unless they wish a reduction in their child’s Title IV-E adoption assistance payments, I strongly recommend:
a. Do not sign the amended adoption assistance agreement.
b. Write the agency an e-mail, stating clearly, “I do not consent to any reduction in ______ Title IV-E adoption assistance because it would be contrary to his/her welfare and would not reflect his/her needs or our family circumstances."
c. Support your objection to any reductions with the arguments below.
Errors? Let Us Count Them
The letter, after apologetically requesting that parents voluntarily absorb the reduction in adoption assistance ends by stating “This modification may be reflected in your October 2009 check.” Further, “If you do not agree to do this reduction, you do have the right to appeal this to the State;. . .” I urge parents to respond. Unless they wish a reduction in their child’s Title IV-E adoption assistance payments, I strongly recommend:
a. Do not sign the amended adoption assistance agreement.
b. Write the agency an e-mail, stating clearly, “I do not consent to any reduction in ______ Title IV-E adoption assistance because it would be contrary to his/her welfare and would not reflect his/her needs or our family circumstances."
c. Support your objection to any reductions with the arguments below.
Errors? Let Us Count Them
1. The County agencies have already been informed that federal law forbids them to automatically and unilaterally reduced existing adoption assistance payments. The Director of the Ohio Department of Job and Family Services (ODJFS) citing Section 8.2A of the federal Child Welfare Policy Manual the policy informed the counties that they were not authorized to cut existing adoption assistance payments without the consent of the adoptive families.
2. Adoptive families receiving this letter are under no obligation to respond unless they receive a formal notification of a reduction in benefits. Since Crawford County may not realize this, parents are urged to respond with the points cited here.
3. State administrative hearings are based on a denial of benefits. There are no grounds for a hearing. If Crawford County attempts to reduce special needs children’s adoption assistance benefits, they must send individual families written notification, citing what assistance is being denied, the reasons, the applicable laws or regulations, along with information on requesting a hearing. Once again, I am curious as to what grounds and rules the agency would cite in support of its proposed actions.
2. Adoptive families receiving this letter are under no obligation to respond unless they receive a formal notification of a reduction in benefits. Since Crawford County may not realize this, parents are urged to respond with the points cited here.
3. State administrative hearings are based on a denial of benefits. There are no grounds for a hearing. If Crawford County attempts to reduce special needs children’s adoption assistance benefits, they must send individual families written notification, citing what assistance is being denied, the reasons, the applicable laws or regulations, along with information on requesting a hearing. Once again, I am curious as to what grounds and rules the agency would cite in support of its proposed actions.
Section 8.2A of the federal Child Welfare Policy Manual clearly indicates that budget problems are not sufficient grounds for automatically reducing IV-E adoption assistance payments. OAC 5101:2-49-12(B) states in pertinent part “any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family.”
4. The proposed cut of $60 per month in adoption assistance does not reflect the actual loss to the county agency. The federal financial participation rate in IV-E adoption assistance has risen from 60% to 68.34% of the cost of monthly adoption assistance payments.
The state and counties’ participation rates in providing non federal matching funds has fallen from 40% to 31.66% of the cost. The cost to the county for the recent reduction in the state’s financial participation rate from monthly adoption assistance payments of up to $300 to payments of up to $240 is approximately $20 per month. The county’s non federal share for every dollar over $240 per month is actually lower than it was a year ago.68.34% of the $60 dollars is federal money.
5. If a county agency proposes reductions and force adoptive parents to appeal, the county will lose, embarrass itself and incur a considerable amount of ill will.
6. Crawford County has an obligation under federal and state law to negotiate future Title IV-E adoption assistance agreements based up a consideration of the needs of the child and circumstances of the adoptive family. Counties have no authority to simply declare “ I will not negotiate.”
Crawford County Letter
Thomas M. O'leary, Director
Income Maintenance * Workforce Development * Child Support Enforcement * Children
Services
Crawford County Job and
Family Services
224 Norton Way
Bucyrus, Ohio 44820
Phone-419-562-0015
Crawford County Children
Services
865 Harding Way West
Galion, Ohio 44833
Phone-468-3255
Fax-419-468-6771
As you may be aware, the State of Ohio has made significant budget cuts which
have impacted many programs and services. These cuts included several
sources of adoption funding and subsidies, as well as overall funding to county
Job & Family Services Departments. Crawford County Department of Job &
Family Services cannot make up for the loss of the state's support for adoption
Subsidies. We find ourselves in the difficult position of needing to renegotiate all
of the county's adoption subsidy agreements.
The notice we sent on 8/14/09 was sent in error and it only pertained to the Stated
Adoption Maintenance Program (SAMS). At this time we are requesting a renegotiation
of your Title IV-E Adoption Subsidy.
It has never been this agency's desire to cut the adoption subsidies which help
families to meet their child's special needs. However, the current economic
situation has hit everyone, including state and local government offices. Your
adoption worker negotiated your subsidy amount with you in good faith,
understanding that your child has specific special needs. Crawford County
Department of Job & Family Services agreed to that amount believing that the
state and federal governments would continue to provide their financial backing
for this program. The state's recent actions have made it clear that this agency
is vulnerable in ways not previously anticipated.
Since the state has indicated that it will provide $240 towards each Adoption
Assistance Agreement, we are sending you anew Adoption Assistance
Agreement form and a new IV-E Adoption Assistance Continuing Eligibility
Determination form. The new agreement form reflects a reduction in state
support. Whether or not you have already returned the form sent earlier this
month, we ask you to review this form. If you are willing to accept the revised
change to your child's monthly subsidy, please sign both forms where they are
highlighted, and return the forms in the envelope provided.
This month, your child's total subsidy amount was ______. You will receive
your subsidy a little different now that the State has reduced the amount they
are paying. You will receive a check with the reduced amount from the State and
a check from our county auditors. You may receive a W-9 in this letter for
payments made by our county if we do not have one on file for your family.
We regret the need to request any concessions from the adoptive families that
we know are working hard to meet their children's regular and often very special
needs. We do not take this action lightly.
If we do not find a way to get current costs under control, we may not be able to negotiate anything higher than the state's new base rate with new adoptive families, regardless of the severity of their children's special needs. Your help now may help us find homes in the future for children with special needs.
This modification may be reflected in your October 2009 check. If you accept the
suggested modification, (Child’s Name ) total subsidy amount will be ($60 less).
If you do not agree to do this reduction, you do have the right to appeal this to the
State; please call Sue Bauer at 419-468-3255 at ext. 250.
~~'--~
Sue Bauer
Foster Care/Adoption Coordinator
4. The proposed cut of $60 per month in adoption assistance does not reflect the actual loss to the county agency. The federal financial participation rate in IV-E adoption assistance has risen from 60% to 68.34% of the cost of monthly adoption assistance payments.
The state and counties’ participation rates in providing non federal matching funds has fallen from 40% to 31.66% of the cost. The cost to the county for the recent reduction in the state’s financial participation rate from monthly adoption assistance payments of up to $300 to payments of up to $240 is approximately $20 per month. The county’s non federal share for every dollar over $240 per month is actually lower than it was a year ago.68.34% of the $60 dollars is federal money.
5. If a county agency proposes reductions and force adoptive parents to appeal, the county will lose, embarrass itself and incur a considerable amount of ill will.
6. Crawford County has an obligation under federal and state law to negotiate future Title IV-E adoption assistance agreements based up a consideration of the needs of the child and circumstances of the adoptive family. Counties have no authority to simply declare “ I will not negotiate.”
Crawford County Letter
Thomas M. O'leary, Director
Income Maintenance * Workforce Development * Child Support Enforcement * Children
Services
Crawford County Job and
Family Services
224 Norton Way
Bucyrus, Ohio 44820
Phone-419-562-0015
Crawford County Children
Services
865 Harding Way West
Galion, Ohio 44833
Phone-468-3255
Fax-419-468-6771
As you may be aware, the State of Ohio has made significant budget cuts which
have impacted many programs and services. These cuts included several
sources of adoption funding and subsidies, as well as overall funding to county
Job & Family Services Departments. Crawford County Department of Job &
Family Services cannot make up for the loss of the state's support for adoption
Subsidies. We find ourselves in the difficult position of needing to renegotiate all
of the county's adoption subsidy agreements.
The notice we sent on 8/14/09 was sent in error and it only pertained to the Stated
Adoption Maintenance Program (SAMS). At this time we are requesting a renegotiation
of your Title IV-E Adoption Subsidy.
It has never been this agency's desire to cut the adoption subsidies which help
families to meet their child's special needs. However, the current economic
situation has hit everyone, including state and local government offices. Your
adoption worker negotiated your subsidy amount with you in good faith,
understanding that your child has specific special needs. Crawford County
Department of Job & Family Services agreed to that amount believing that the
state and federal governments would continue to provide their financial backing
for this program. The state's recent actions have made it clear that this agency
is vulnerable in ways not previously anticipated.
Since the state has indicated that it will provide $240 towards each Adoption
Assistance Agreement, we are sending you anew Adoption Assistance
Agreement form and a new IV-E Adoption Assistance Continuing Eligibility
Determination form. The new agreement form reflects a reduction in state
support. Whether or not you have already returned the form sent earlier this
month, we ask you to review this form. If you are willing to accept the revised
change to your child's monthly subsidy, please sign both forms where they are
highlighted, and return the forms in the envelope provided.
This month, your child's total subsidy amount was ______. You will receive
your subsidy a little different now that the State has reduced the amount they
are paying. You will receive a check with the reduced amount from the State and
a check from our county auditors. You may receive a W-9 in this letter for
payments made by our county if we do not have one on file for your family.
We regret the need to request any concessions from the adoptive families that
we know are working hard to meet their children's regular and often very special
needs. We do not take this action lightly.
If we do not find a way to get current costs under control, we may not be able to negotiate anything higher than the state's new base rate with new adoptive families, regardless of the severity of their children's special needs. Your help now may help us find homes in the future for children with special needs.
This modification may be reflected in your October 2009 check. If you accept the
suggested modification, (Child’s Name ) total subsidy amount will be ($60 less).
If you do not agree to do this reduction, you do have the right to appeal this to the
State; please call Sue Bauer at 419-468-3255 at ext. 250.
~~'--~
Sue Bauer
Foster Care/Adoption Coordinator
Friday, September 11, 2009
Lorain County Alters IV-E Adoption Assistance Agreement Form and Asks Adoptive Parents to Surrender Their Rights
Lorain County Children Services has taken the bold and cynical step of asking adoption parents to voluntarily surrender their right to negotiate adoption assistance agreements. Instead, they are asked to accept “corresponding reductions” in their adoption assistance payments if the state reduces it’s level of financial participation in the Title IV-E adoption assistance program. In essence, adoptive parents are being asked to accept possible reductions in their children’s adoption assistance payments, no matter what changes in their child’s needs and family circumstances may occur. In doing so, they would give up negotiation rights guaranteed by federal and state law.
Lorain County recently sent adoptive parents of special needs children receiving Title IV-E adoption assistance payments a letter and an amended JFS 01453 Title IV-E Adoption Assistance Agreement form. The letter points to three new provisions on the form which parents are asked to sign. The three provisions do not appear in federal or state law, nor were they approved by the Ohio Department of Job and Family Services (ODJFS) making the altered form essentially illegal. NOTE: E-Mail me for a copy of the letter and the altered form.
By signing the made up form, the parents would agree to the following:
a. The county is not responsible for any financial participation (funding) above its “current match dollar amount.”
b. The parents agree that if the state reduces its financial participation in the Title IV-E adoption assistance program, that they (the parents) will accept a corresponding “proportional reduction” in their adoption assistance payments.
c. The parents accept that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments.
Parents that decline to sign are told to request a state administrative hearing, which constitutes a clear abuse of power on the part of Lorain County, particularly in the wake of ODJFS Director Lumpkin’s letter forbidding counties to make automatic deductions in existing adoption. assistance agreements. Parents are not obliged in any way to sign an amended adoption assistance agreement, especially one with provisions that are not sanctioned by law. Furthermore, there are no grounds for a state administrative appeal, because there is no explicit denial of benefits. If you inadvertently signed such a document, please contact me or another advocate. It is doubtful that such an unsanctioned document can be enforced.
The altered provisions in the form are designed to get around the problem that an adoption assistance agreement may not be automatically amended without the consent of the parents. Not only are parents being asked to give up the basic right to negotiate adoption assistance agreements, but the added language is far from clear. Even if a parents were deceived into signing such a document, no one would know what they were signing. Lorain County’s intentions are somewhat obvious, but the language doesn’t get them there. Neither, of course, does the employment of an unapproved form and the attempt to violate adoptive families’ due process rights.
What is a “current dollar match amount?” Adoption assistance agreements can be negotiated up the level of support he or she would receive were they in a foster home suitable to their level of care. There is no such thing as a “current dollar match amount.”
The statement that a county is not responsible for the federal or state portion of IV-E adoption assistance payments is a truism. Federal and state financial participation rates are set by law. The county portion is part of the negotiation process.
What is a “corresponding reduction” of an adoption assistance payment? Does it include the federal share which is 68.34% of the overall cost.
The sample letter below is designed to help parents respond to dubiously “ethical” proposals such as the one proffered by Lorain County. Feel free to use any portion of the sample you wish. Please contact me if you receive any other suspicious correspondence. If it smells bad, it probably is bad. We are documenting actions that are out of compliance with federal law.
Recommended Letter Rejecting the County’s Proposal
Dear _______,
I recently received a letter and an amended JFS 01453 Title IV-E adoption assistance agreements form. The letter asks parents to sign statements agreeing that:
The county is not responsible for any financial participation (funding) above its “current match dollar amount.”
The parents agree that if the state reduces its financial participation in the Title IV-E adoption assistance program, that they (the parents) will accept a corresponding “proportional reduction in their adoption assistance payments.
The parents accept that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments.
I am not willing to sign the amended adoption assistance agreement form for a number of reasons, including the following:
1. Lorain County has illegally altered a state Title IV-E adoption assistance agreement form. There are no provisions in either federal or state law which require or request adoptive parents to pledge that any reductions in state financial participation in the federal adoption assistance program absolve the county agency from any financial responsibilities.
The Director of the Ohio Department of Job and Family Services recently sent a letter to Lorain County and all Ohio agencies affirming the federal policy that county agencies could not make unilateral, automatic reductions in existing Title IV-E adoption assistance payments without the parents consent. I suppose the strategy here is to get around requirements to negotiate initial and amended adoption assistance agreements by getting the parents consent for the county to make automatic reductions in the future no matter what the needs of the child and circumstances of the family.
2. Signing this agreement could be used as a ploy to reduce our current adoption assistance payments.
3. For good reason, federal and state law require that requests for additional adoption assistance and modifications of existing Title IV-E adoption assistance agreements be negotiated based upon the needs of the child and circumstances of the family. In-as-much as no one knows what the future holds, it is clearly contrary to our children’s welfare to authorize an automatic reduction in their adoption assistance payments if the state reduces its financial participation in Title IV-E adoption assistance.
4. As economic conditions worsen, the federal financial participation rate in Title IV-E adoption assistance increases. The federal financial participation rate in IV-E adoption assistance has risen for 60% to 68.34% of the cost of monthly adoption assistance payments. The state and counties’ participation rates in providing non federal matching funds has fallen from 40% to 31.66% of the cost. The cost to the county for the recent reduction in the state’s financial participation rate from monthly adoption assistance payments of up to $300 to payments of up to $240 is approximately $20 per month. The county’s non federal share for every dollar over $240 per month is actually lower than it was a year ago.
5. The provisions in the altered form are not at all clear. What does the agency’s “current dollar match amount” mean? There is no set amount. Adoption assistance payments are negotiated. The county’s matching participation rate, as noted above, is 31.66% for each dollar over $240 per month up to the child’s appropriate foster home rate. What is a corresponding reduction in adoption assistance if the state lowers it’s financial participation rate? As noted above, the state’s reduction in participation from a maximum of $300 per month to a maximum of $240 per month, cost counties about $20 per month. The remainder is absorbed by federal dollars. Is a “corresponding reduction” $20 or $60?
Finally, the statement that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments makes no sense unless it is taken as a truism. The federal portion is determined by the same formula as Medicaid. The state portion is determined by state law. The county’s actual payment is determined by negotiation.
6. A county cannot arbitrarily opt out the responsibility to negotiate adoption assistance agreements. Federal and state laws pertaining to the negotiation of adoption assistance agreements remain the same.
7. The form represents a cynical attempt to induce parents to surrender their right to negotiate future adoption assistance agreements, a right guaranteed by federal law.
8. Questions involving the state’s and county’s responsibilities for providing the non-federal matching funds for Title IV-E adoption assistance are matters that must be resolved by state and county governments and state law. It does special needs children a great disservice to ask their parents to solve the county’s financial problems. The county children services agencies are represented by the Public Children Services Association of Ohio, (PCSAO), an organization which traditionally has a great deal of influence with ODJFS. You should take the matter up with them.
9. We are under no obligation to sign this amended and illegal adoption assistance form. Since we do not consent to reductions in our children’s adoption assistance payments. Lorain County is attempting to induce us to sign an illegally altered adoption assistance agreement. State administrative hearings are based on a denial of benefits. There are no grounds for a hearing. If Lorain County attempts to reduce our children’s adoption assistance automatically, without our consent in defiance of federal law, state law and the letter by ODJFS’ Director Lumpkin, explicitly forbidding such action, we will appeal, you will lose and we will expose this cynical attempt to save money at the expense of special needs children.
Lorain County recently sent adoptive parents of special needs children receiving Title IV-E adoption assistance payments a letter and an amended JFS 01453 Title IV-E Adoption Assistance Agreement form. The letter points to three new provisions on the form which parents are asked to sign. The three provisions do not appear in federal or state law, nor were they approved by the Ohio Department of Job and Family Services (ODJFS) making the altered form essentially illegal. NOTE: E-Mail me for a copy of the letter and the altered form.
By signing the made up form, the parents would agree to the following:
a. The county is not responsible for any financial participation (funding) above its “current match dollar amount.”
b. The parents agree that if the state reduces its financial participation in the Title IV-E adoption assistance program, that they (the parents) will accept a corresponding “proportional reduction” in their adoption assistance payments.
c. The parents accept that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments.
Parents that decline to sign are told to request a state administrative hearing, which constitutes a clear abuse of power on the part of Lorain County, particularly in the wake of ODJFS Director Lumpkin’s letter forbidding counties to make automatic deductions in existing adoption. assistance agreements. Parents are not obliged in any way to sign an amended adoption assistance agreement, especially one with provisions that are not sanctioned by law. Furthermore, there are no grounds for a state administrative appeal, because there is no explicit denial of benefits. If you inadvertently signed such a document, please contact me or another advocate. It is doubtful that such an unsanctioned document can be enforced.
The altered provisions in the form are designed to get around the problem that an adoption assistance agreement may not be automatically amended without the consent of the parents. Not only are parents being asked to give up the basic right to negotiate adoption assistance agreements, but the added language is far from clear. Even if a parents were deceived into signing such a document, no one would know what they were signing. Lorain County’s intentions are somewhat obvious, but the language doesn’t get them there. Neither, of course, does the employment of an unapproved form and the attempt to violate adoptive families’ due process rights.
What is a “current dollar match amount?” Adoption assistance agreements can be negotiated up the level of support he or she would receive were they in a foster home suitable to their level of care. There is no such thing as a “current dollar match amount.”
The statement that a county is not responsible for the federal or state portion of IV-E adoption assistance payments is a truism. Federal and state financial participation rates are set by law. The county portion is part of the negotiation process.
What is a “corresponding reduction” of an adoption assistance payment? Does it include the federal share which is 68.34% of the overall cost.
The sample letter below is designed to help parents respond to dubiously “ethical” proposals such as the one proffered by Lorain County. Feel free to use any portion of the sample you wish. Please contact me if you receive any other suspicious correspondence. If it smells bad, it probably is bad. We are documenting actions that are out of compliance with federal law.
Recommended Letter Rejecting the County’s Proposal
Dear _______,
I recently received a letter and an amended JFS 01453 Title IV-E adoption assistance agreements form. The letter asks parents to sign statements agreeing that:
The county is not responsible for any financial participation (funding) above its “current match dollar amount.”
The parents agree that if the state reduces its financial participation in the Title IV-E adoption assistance program, that they (the parents) will accept a corresponding “proportional reduction in their adoption assistance payments.
The parents accept that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments.
I am not willing to sign the amended adoption assistance agreement form for a number of reasons, including the following:
1. Lorain County has illegally altered a state Title IV-E adoption assistance agreement form. There are no provisions in either federal or state law which require or request adoptive parents to pledge that any reductions in state financial participation in the federal adoption assistance program absolve the county agency from any financial responsibilities.
The Director of the Ohio Department of Job and Family Services recently sent a letter to Lorain County and all Ohio agencies affirming the federal policy that county agencies could not make unilateral, automatic reductions in existing Title IV-E adoption assistance payments without the parents consent. I suppose the strategy here is to get around requirements to negotiate initial and amended adoption assistance agreements by getting the parents consent for the county to make automatic reductions in the future no matter what the needs of the child and circumstances of the family.
2. Signing this agreement could be used as a ploy to reduce our current adoption assistance payments.
3. For good reason, federal and state law require that requests for additional adoption assistance and modifications of existing Title IV-E adoption assistance agreements be negotiated based upon the needs of the child and circumstances of the family. In-as-much as no one knows what the future holds, it is clearly contrary to our children’s welfare to authorize an automatic reduction in their adoption assistance payments if the state reduces its financial participation in Title IV-E adoption assistance.
4. As economic conditions worsen, the federal financial participation rate in Title IV-E adoption assistance increases. The federal financial participation rate in IV-E adoption assistance has risen for 60% to 68.34% of the cost of monthly adoption assistance payments. The state and counties’ participation rates in providing non federal matching funds has fallen from 40% to 31.66% of the cost. The cost to the county for the recent reduction in the state’s financial participation rate from monthly adoption assistance payments of up to $300 to payments of up to $240 is approximately $20 per month. The county’s non federal share for every dollar over $240 per month is actually lower than it was a year ago.
5. The provisions in the altered form are not at all clear. What does the agency’s “current dollar match amount” mean? There is no set amount. Adoption assistance payments are negotiated. The county’s matching participation rate, as noted above, is 31.66% for each dollar over $240 per month up to the child’s appropriate foster home rate. What is a corresponding reduction in adoption assistance if the state lowers it’s financial participation rate? As noted above, the state’s reduction in participation from a maximum of $300 per month to a maximum of $240 per month, cost counties about $20 per month. The remainder is absorbed by federal dollars. Is a “corresponding reduction” $20 or $60?
Finally, the statement that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments makes no sense unless it is taken as a truism. The federal portion is determined by the same formula as Medicaid. The state portion is determined by state law. The county’s actual payment is determined by negotiation.
6. A county cannot arbitrarily opt out the responsibility to negotiate adoption assistance agreements. Federal and state laws pertaining to the negotiation of adoption assistance agreements remain the same.
7. The form represents a cynical attempt to induce parents to surrender their right to negotiate future adoption assistance agreements, a right guaranteed by federal law.
8. Questions involving the state’s and county’s responsibilities for providing the non-federal matching funds for Title IV-E adoption assistance are matters that must be resolved by state and county governments and state law. It does special needs children a great disservice to ask their parents to solve the county’s financial problems. The county children services agencies are represented by the Public Children Services Association of Ohio, (PCSAO), an organization which traditionally has a great deal of influence with ODJFS. You should take the matter up with them.
9. We are under no obligation to sign this amended and illegal adoption assistance form. Since we do not consent to reductions in our children’s adoption assistance payments. Lorain County is attempting to induce us to sign an illegally altered adoption assistance agreement. State administrative hearings are based on a denial of benefits. There are no grounds for a hearing. If Lorain County attempts to reduce our children’s adoption assistance automatically, without our consent in defiance of federal law, state law and the letter by ODJFS’ Director Lumpkin, explicitly forbidding such action, we will appeal, you will lose and we will expose this cynical attempt to save money at the expense of special needs children.
Thursday, September 3, 2009
ODJFS Must Require County Agencies to Negotiate Title IV-E Adoption Assistance Agreements in Accordance with Federal and State Laws and Enforce State
The next challenge facing adoptive families and advocates across Ohio can be captured in the following scenario. There are already indications that county agencies are determined not to negotiate IV-E adoption assistance agreements and to insist that Adoptive parents settle for adoption assistance payments of no more than $240 per month, even in cases where they have been foster parents of a child with a specialized level of care receiving monthly foster care support of more than $1,000.
An even bigger concern is whether the Ohio Department of Job and Family Services (ODJFS) will enforce state administrative decisions in which adoptive parents successfully appeal. One ODJFS official confided to us that there was nothing that could be done when a county defied a hearing order, which is hardly the case.
Please inform me and copy the following officials at the end of this message if the any of events depicted in the scenario happen to you. I am collecting documentation so please-mail hearing decisions, e-mail messages, letters or summaries of agency officials’ statements to you. I will help with the preparation of negotiation sessions and hearings.
Scenario of County and/or ODJFS Non-Compliance
1. The county agency refuses to negotiate (that is go beyond $240 per month for IV-E adoption assistance, which is contrary to federal and state law; and/or
2. The agency talks with the parents, but does not actually negotiate. The agency refuses to recognize any expense, condition, situation, service put forth by the parent as legitimate in determining adoption assistance. The agency’s arbitrary position has no basis in federal or state law. This behavior too is against federal and state law which requires negotiations to consider ordinary as well as special needs, anticipated as well as current needs and overall family circumstances defined as incorporation of the child into a permanent family. It results in the agency's insitence on adoption assistance payments hundreds of dollars lower than the child's foster care rate.
3. The parents appeal and their appeal is sustained (upheld). The hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed by the county agency is is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child's needs and family circumstances as prescribed in state and federal law.
4. The agency stalls, demands irrelevant information or in some cases simply refuses to comply. It has no fear of ODJFS.
5. Such refusal is in direct defiance of state hearing laws. Also, adoptive parents are guaranteed due process rights in the Code of Federal Regulations at 45 CFR 205.10. Federal law addressing states' IV-E plan requirements obligates ODJFS to administer the IV-E program across political subdivisions and to exercise oversight.
County Non-Compliance in Negotiating Title IV-E Adoption Assistance Agreements
County agencies that refuse to negotiate will usually lose state administrative hearings following appeals brought by adoptive families. When the adoptive family’s appeal is sustained the hearing decision typically order the county to resume negotiations. The order is issued with the clear understanding that the agency will negotiate an adoption assistance agreement based on a consideration of the needs of the child and circumstances of the family as set forth in Ohio rule 5101:2-49-05 and amplified in Section 8.2D.4 of the federal Child Welfare Policy Manual.
Although hearing officers are reluctant to set rates, an order to renegotiate, clearly indicates a determination that the amount proposed by the county agency is insufficient. If it were not, there would be no need for further negotiation. Until recently, an order to renegotiate usually led to an agreement for an amount of adoption assistance that more closely reflected the child’s needs and family circumstances.
Now, faced with tight budgets, we have seen some instances of county agencies, not only refusing to negotiate adoption assistance agreements in accordance with federal and state laws, but continuing to drag their feet and to resist good faith negotiations in response to state administrative hearing orders. While such practices may not constitute a large scale trend as yet, they must be stopped before the majority county agency directors assume that they can get away with anything without consequence.
ODJFS Non-Compliance with Enforcement of State Administrative Hearing Decisions
Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.” Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.”
When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis for its position in fact or in law, it is clearly defying Ohio law. As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.
Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—
(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;
(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;
It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders. ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties.
Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.
Criteria and Procedures for the Negotiation of IV-E Adoption Assistance Agreements Have Not Changed
Laws governing negotiations of Title IV-E adoption assistance agreements remain the same in the wake of recent budget changes. As we have noted previously, the financial burden on the county agencies resulting from the reduction in the state’s financial participation in federal adoption assistance payments is not as severe as it might appear at first glance. The federal financial participation rate has been 68.34% since April, leaving the counties financial share at 31.66% of any adoption assistance payment over $240 on or after September 1, 2009.
In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’ legal services staff, cited the federal Child Welfare Policy Manual on three separate occasions. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The most striking quote was taken from Section 8.2D.4 of the Child Welfare Policy Manual with addresses the negotiation of adoption assistance agreements. The first sentence reads as follows: “Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income.”
Some Ohio counties insist on adding up an “itemized” list of expenses that the agency deems acceptable. The quotation in the recent Administrative Appeal decision continues:
"Instead, the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.
The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement. Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment."
The Administrative Appeal Decision was signed by the Head of the ODJFS Office of Legal Services as well as the reviewer.
Contacts
Please contact:
Lewis George, Head of the ODJFS Office Legal Services at lewis.george@jfs.ohio.gov ,
Robert Frankart, Senior Attorney ODJFS Office of Legal Services at bob.frankart@jfs.ohio.gov ,
Donna Vargo, Head of the Bureau of State Hearings at donna.vargo@jfs.ohio.gov ,
Sandra Holt, Deputy Director of the ODJFS Office of Children and Family Services at sandra.holt@jfs.ohio.gov .
Also, Armond Budish, Speaker of the Ohio House at district08@ohr.state.oh.us
Ted Celeste, Representative, Ohio House, Columbus/Grandview area at district24@ohr.state.oh.us
William G. Batchelder, Minority Leader Ohio House of Representatives at
district69@ohr.state.oh.us
Charles Preston, Governor’s Office at charles.preston@governor.ohio.gov
Please express your concern as applicable that:
1. County agencies are not negotiating Title IV-E adoption assistance agreements based on the broad needs of the child and overall circumstances of the family as required by OAC rule 5101:2-49-05 and Section 8.2D.4 of the Child Welfare Policy Manual which clarifies that rule.
2. When hearing decisions order county agencies to renegotiate the adoption assistance agreement, sustaining the adoptive family’s appeal, there is a tacit recognition that the original amount proposed by the agency was an insufficient reflection of the child’s needs and family circumstances. Now, some county agency’s are openly defying hearing orders, which is clearly against state law and a violation of ODJFS’ responsibility under federal laws governing IV-E State Plans at 42 U.S.C. 671. Continuing non-compliance with hearing decisions would appear to place Ohio’s IV-E federal funding at risk.
Add any relevant personal experiences. Mention that everyone in Ohio is experiencing economic hard times, not just agencies and tight budgets are not a valid justification for ignoring federal and state law. Use any portions of the blog that you find useful.
3. Urge/demand that ODJFS:
a. Enforce laws governing the negotiation of adoption assistance agreements uniformly across political subdivisions as required by federal law.
b. Enforce hearing decisions, especial those involving county agencies to renegotiate in good faith with adoptive parents. Mention, that if certain unfair and dubious practices among county agencies continue to grow, that adoptive parents across the state are going to take their case to the federal Administration for Children and Families and to Children’s Rights in New York, which has litigated a number of child welfare cases.
An even bigger concern is whether the Ohio Department of Job and Family Services (ODJFS) will enforce state administrative decisions in which adoptive parents successfully appeal. One ODJFS official confided to us that there was nothing that could be done when a county defied a hearing order, which is hardly the case.
Please inform me and copy the following officials at the end of this message if the any of events depicted in the scenario happen to you. I am collecting documentation so please-mail hearing decisions, e-mail messages, letters or summaries of agency officials’ statements to you. I will help with the preparation of negotiation sessions and hearings.
Scenario of County and/or ODJFS Non-Compliance
1. The county agency refuses to negotiate (that is go beyond $240 per month for IV-E adoption assistance, which is contrary to federal and state law; and/or
2. The agency talks with the parents, but does not actually negotiate. The agency refuses to recognize any expense, condition, situation, service put forth by the parent as legitimate in determining adoption assistance. The agency’s arbitrary position has no basis in federal or state law. This behavior too is against federal and state law which requires negotiations to consider ordinary as well as special needs, anticipated as well as current needs and overall family circumstances defined as incorporation of the child into a permanent family. It results in the agency's insitence on adoption assistance payments hundreds of dollars lower than the child's foster care rate.
3. The parents appeal and their appeal is sustained (upheld). The hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed by the county agency is is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child's needs and family circumstances as prescribed in state and federal law.
4. The agency stalls, demands irrelevant information or in some cases simply refuses to comply. It has no fear of ODJFS.
5. Such refusal is in direct defiance of state hearing laws. Also, adoptive parents are guaranteed due process rights in the Code of Federal Regulations at 45 CFR 205.10. Federal law addressing states' IV-E plan requirements obligates ODJFS to administer the IV-E program across political subdivisions and to exercise oversight.
County Non-Compliance in Negotiating Title IV-E Adoption Assistance Agreements
County agencies that refuse to negotiate will usually lose state administrative hearings following appeals brought by adoptive families. When the adoptive family’s appeal is sustained the hearing decision typically order the county to resume negotiations. The order is issued with the clear understanding that the agency will negotiate an adoption assistance agreement based on a consideration of the needs of the child and circumstances of the family as set forth in Ohio rule 5101:2-49-05 and amplified in Section 8.2D.4 of the federal Child Welfare Policy Manual.
Although hearing officers are reluctant to set rates, an order to renegotiate, clearly indicates a determination that the amount proposed by the county agency is insufficient. If it were not, there would be no need for further negotiation. Until recently, an order to renegotiate usually led to an agreement for an amount of adoption assistance that more closely reflected the child’s needs and family circumstances.
Now, faced with tight budgets, we have seen some instances of county agencies, not only refusing to negotiate adoption assistance agreements in accordance with federal and state laws, but continuing to drag their feet and to resist good faith negotiations in response to state administrative hearing orders. While such practices may not constitute a large scale trend as yet, they must be stopped before the majority county agency directors assume that they can get away with anything without consequence.
ODJFS Non-Compliance with Enforcement of State Administrative Hearing Decisions
Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.” Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.”
When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis for its position in fact or in law, it is clearly defying Ohio law. As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.
Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—
(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;
(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;
(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;
(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;
(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;
It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders. ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties.
Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.
Criteria and Procedures for the Negotiation of IV-E Adoption Assistance Agreements Have Not Changed
Laws governing negotiations of Title IV-E adoption assistance agreements remain the same in the wake of recent budget changes. As we have noted previously, the financial burden on the county agencies resulting from the reduction in the state’s financial participation in federal adoption assistance payments is not as severe as it might appear at first glance. The federal financial participation rate has been 68.34% since April, leaving the counties financial share at 31.66% of any adoption assistance payment over $240 on or after September 1, 2009.
In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’ legal services staff, cited the federal Child Welfare Policy Manual on three separate occasions. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The most striking quote was taken from Section 8.2D.4 of the Child Welfare Policy Manual with addresses the negotiation of adoption assistance agreements. The first sentence reads as follows: “Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income.”
Some Ohio counties insist on adding up an “itemized” list of expenses that the agency deems acceptable. The quotation in the recent Administrative Appeal decision continues:
"Instead, the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.
The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement. Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment."
The Administrative Appeal Decision was signed by the Head of the ODJFS Office of Legal Services as well as the reviewer.
Contacts
Please contact:
Lewis George, Head of the ODJFS Office Legal Services at lewis.george@jfs.ohio.gov ,
Robert Frankart, Senior Attorney ODJFS Office of Legal Services at bob.frankart@jfs.ohio.gov ,
Donna Vargo, Head of the Bureau of State Hearings at donna.vargo@jfs.ohio.gov ,
Sandra Holt, Deputy Director of the ODJFS Office of Children and Family Services at sandra.holt@jfs.ohio.gov .
Also, Armond Budish, Speaker of the Ohio House at district08@ohr.state.oh.us
Ted Celeste, Representative, Ohio House, Columbus/Grandview area at district24@ohr.state.oh.us
William G. Batchelder, Minority Leader Ohio House of Representatives at
district69@ohr.state.oh.us
Charles Preston, Governor’s Office at charles.preston@governor.ohio.gov
Please express your concern as applicable that:
1. County agencies are not negotiating Title IV-E adoption assistance agreements based on the broad needs of the child and overall circumstances of the family as required by OAC rule 5101:2-49-05 and Section 8.2D.4 of the Child Welfare Policy Manual which clarifies that rule.
2. When hearing decisions order county agencies to renegotiate the adoption assistance agreement, sustaining the adoptive family’s appeal, there is a tacit recognition that the original amount proposed by the agency was an insufficient reflection of the child’s needs and family circumstances. Now, some county agency’s are openly defying hearing orders, which is clearly against state law and a violation of ODJFS’ responsibility under federal laws governing IV-E State Plans at 42 U.S.C. 671. Continuing non-compliance with hearing decisions would appear to place Ohio’s IV-E federal funding at risk.
Add any relevant personal experiences. Mention that everyone in Ohio is experiencing economic hard times, not just agencies and tight budgets are not a valid justification for ignoring federal and state law. Use any portions of the blog that you find useful.
3. Urge/demand that ODJFS:
a. Enforce laws governing the negotiation of adoption assistance agreements uniformly across political subdivisions as required by federal law.
b. Enforce hearing decisions, especial those involving county agencies to renegotiate in good faith with adoptive parents. Mention, that if certain unfair and dubious practices among county agencies continue to grow, that adoptive parents across the state are going to take their case to the federal Administration for Children and Families and to Children’s Rights in New York, which has litigated a number of child welfare cases.
Tuesday, September 1, 2009
ODJFS Director Sends Letter to County Agencies Informing Them That They May Not Reduce Existing Adoption Assistance Payments
Douglas E. Lumpkin, Director of the Ohio Department of Job and Family Services (ODJFS) has written a procedure letter stating that Ohio County Agencies may not make automatic or across the board cuts in existing Title IV-E adoption assistance payments. The letter is being sent to all Ohio County Agencies and appears below.
The ODJFS announcement is good news for those advocates and parents across the state that have been taken the position that Title IV-E adoption assistance agreements are contracts and may not be amended without the consent of the adoptive family that is a party to the contract. Anyone that receives a notice lowering a current adoption assistance payment should show the ODJFS letter to their case worker and if the matter isn't resolved right away, request a state administrative hearing. Information on requesting a hearing appears on previous blogs.
Having addressed one major issue, we must now focus on county agency's willingness to negotiate Title IV-E adoption assistance agreements from this point forward. See the previous blog of August 26, 2009 entitled "Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t."
Adoptive parents will win hearings in which county agencies refuse to negotiate. The problem then is what actions will the Ohio Department of Job and Family Services take to enforce the hearing decisions. Compliance with hearing decisions is required by Ohio law.
ODJFS Letter
Here is the text of the ODJFS letter. NOTE: The letter cites Section 8.2D.4 of the federal Child Welfare Policy Manual as source of authority. We have been arguing for years that the state and counties are obliged to adopt policies that are compatible with the Child Welfare Policy Manual and that the Manual clarifies and sometimes corrects existing Ohio regulations. It appears that this view is gaining acceptance at ODJFS.
Family, Children and Adult Services Manual Procedure Letter No.
TO: Family, Children and Adult Services Manual Holders
FROM: Douglas E. Lumpkin, Director
SUBJECT: Modification of the JFS 01453 "Adoption Assistance Agreement"
It has come to our attention that the prescribed JFS 01453 "Adoption Assistance Agreement" may have been modified by one or more public children services agencies recently. While we do not know whether any agency has attempted to use a county-modified form, we are sending this communication to ensure that all agencies discontinue any attempts at modifying this ODJFS-prescribed form.
Revised Code Section 5101.141(B) specifies that ODJFS adopt rules to implement its authority as the single state agency to administer federal payments for Title IV-E adoption assistance. “A public children services agency to which the department distributes Title IV-E funds shall administer the funds in accordance with those rules.”
OAC Chapter 5101:2-49, the rule chapter that ODJFS adopted to implement the Title IV-E adoption assistance program, requires the specific use of the JFS 01453. This ODJFS-prescribed form can be found at http://www.odjfs.state.oh.us/forms/results1.asp. Pursuant to 5101:2-49-06 paragraph (A) the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006) must be signed by both the adoptive parent(s) and the public children services agency (PCSA) for each child receiving Title IV-E adoption assistance (AA) payments. This is a prescribed form for receiving Adoption Assistance payments.
ODJFS has been made aware that one or more PCSAs may be modifying the JFS 01453 by adding a provision that the adoption assistance payments are “subject to the availability of federal and state funds. Any reduction in federal or state financial participation will automatically reduce the adoption assistance payment in an equal amount." In addition, the modified form may require that the adoptive parent check-off that the parent agrees “that any reduction in federal or state funds will automatically reduce this amount in an equal manner.”
Additionally, a modification to the JFS 01453 is a violation of OAC rule 5101:2-49-06. The U.S. Department of Health and Human Services has indicated in its Child Welfare Policy Manual that any such statements in an adoption assistance agreement violates sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. See http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=12
As required by federal law, any modification/amendment of the Title IV-E AA payment amount must be made with the concurrence of the adopting parents(s) based on changes in circumstances of the adopting parents and needs of the child. When the parties agree to a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. A copy shall be given to the adoptive parent(s) and a copy shall be retained by the PCSA. Office of Family and Children, Bureau of Child Welfare Monitoring, Child Protection Oversight and Evaluation (CPOE) section will be monitoring a sample of signed Agreements to ensure that the prescribed JFS 01453 is being used and has not been modified. Please feel free to contact Darlene Dalton, Acting Section Chief at 614-752-0656 if you have any questions.
The ODJFS announcement is good news for those advocates and parents across the state that have been taken the position that Title IV-E adoption assistance agreements are contracts and may not be amended without the consent of the adoptive family that is a party to the contract. Anyone that receives a notice lowering a current adoption assistance payment should show the ODJFS letter to their case worker and if the matter isn't resolved right away, request a state administrative hearing. Information on requesting a hearing appears on previous blogs.
Having addressed one major issue, we must now focus on county agency's willingness to negotiate Title IV-E adoption assistance agreements from this point forward. See the previous blog of August 26, 2009 entitled "Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t."
Adoptive parents will win hearings in which county agencies refuse to negotiate. The problem then is what actions will the Ohio Department of Job and Family Services take to enforce the hearing decisions. Compliance with hearing decisions is required by Ohio law.
ODJFS Letter
Here is the text of the ODJFS letter. NOTE: The letter cites Section 8.2D.4 of the federal Child Welfare Policy Manual as source of authority. We have been arguing for years that the state and counties are obliged to adopt policies that are compatible with the Child Welfare Policy Manual and that the Manual clarifies and sometimes corrects existing Ohio regulations. It appears that this view is gaining acceptance at ODJFS.
Family, Children and Adult Services Manual Procedure Letter No.
TO: Family, Children and Adult Services Manual Holders
FROM: Douglas E. Lumpkin, Director
SUBJECT: Modification of the JFS 01453 "Adoption Assistance Agreement"
It has come to our attention that the prescribed JFS 01453 "Adoption Assistance Agreement" may have been modified by one or more public children services agencies recently. While we do not know whether any agency has attempted to use a county-modified form, we are sending this communication to ensure that all agencies discontinue any attempts at modifying this ODJFS-prescribed form.
Revised Code Section 5101.141(B) specifies that ODJFS adopt rules to implement its authority as the single state agency to administer federal payments for Title IV-E adoption assistance. “A public children services agency to which the department distributes Title IV-E funds shall administer the funds in accordance with those rules.”
OAC Chapter 5101:2-49, the rule chapter that ODJFS adopted to implement the Title IV-E adoption assistance program, requires the specific use of the JFS 01453. This ODJFS-prescribed form can be found at http://www.odjfs.state.oh.us/forms/results1.asp. Pursuant to 5101:2-49-06 paragraph (A) the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006) must be signed by both the adoptive parent(s) and the public children services agency (PCSA) for each child receiving Title IV-E adoption assistance (AA) payments. This is a prescribed form for receiving Adoption Assistance payments.
ODJFS has been made aware that one or more PCSAs may be modifying the JFS 01453 by adding a provision that the adoption assistance payments are “subject to the availability of federal and state funds. Any reduction in federal or state financial participation will automatically reduce the adoption assistance payment in an equal amount." In addition, the modified form may require that the adoptive parent check-off that the parent agrees “that any reduction in federal or state funds will automatically reduce this amount in an equal manner.”
Additionally, a modification to the JFS 01453 is a violation of OAC rule 5101:2-49-06. The U.S. Department of Health and Human Services has indicated in its Child Welfare Policy Manual that any such statements in an adoption assistance agreement violates sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. See http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=12
As required by federal law, any modification/amendment of the Title IV-E AA payment amount must be made with the concurrence of the adopting parents(s) based on changes in circumstances of the adopting parents and needs of the child. When the parties agree to a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. A copy shall be given to the adoptive parent(s) and a copy shall be retained by the PCSA. Office of Family and Children, Bureau of Child Welfare Monitoring, Child Protection Oversight and Evaluation (CPOE) section will be monitoring a sample of signed Agreements to ensure that the prescribed JFS 01453 is being used and has not been modified. Please feel free to contact Darlene Dalton, Acting Section Chief at 614-752-0656 if you have any questions.
Wednesday, August 26, 2009
Why Ohio County Agencies Cannot Automatically Reduce Existing Adoption Assistance Payments and What to Do About It
NOTE: If you receive a notification that your Title IV-E adoption assistance payment is being automatically reduced, please let me know and e-mail me a copy of the notice or mail a copy to Tim O’Hanlon, 1371 Virginia Ave. Columbus, OH 43212.
Neither the Ohio Department of Job and Family Services (ODJFS), nor individual counties may make across the board cuts in existing Title IV-E adoption assistance payments. Here are some reasons why automatic cuts are not legally permissible.
Ohio Regulations at OAC 5101:2-49-12
Ohio rules in conformance with federal law emphasize that adoption assistance agreements must be modified or amended by mutual consent. Paragraph (A) states in pertinent part:
Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. (emphasis added)
Paragraph (B) of OAC 5101:2-49-12 provides in pertinent part:
"At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. (Emphasis added).
Federal Law
The federal Child Welfare Policy Manual is the vehicle though which the federal Administration for Children and Families’, Children’s Bureau interprets federal adoption assistance law. The Children’s Bureau web site makes this very point on the page entitled “Laws and Policies.” The Child Welfare Policy Manual, it states,
"conveys mandatory policies that have their basis in Federal law and/or program regulations. It also provides interpretations of Federal statutes and program regulations initiated by inquiries from State Child Welfare agencies or ACF Regional Offices."
The Child Welfare Policy Manual clarifies and explains Ohio rules. Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.
1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?
Answer: "No. Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence." (Emphasis added).
Federal Court’s Rule that Adoption Assistance Agreements are Contracts
On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.
Finally, in responding to an inquiry about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”
Recommendations
If an adoptive parent with an existing adoption assistance agreement receives a notice from a county or state agency proposing to reduce the child’s adoption assistance payment, they should immediately appeal by contacting the Bureau of State Hearings at ODJFS and requesting a hearing because the agency has proposed to reduce the adoption assistance benefit without grounds. After you have requested a hearing, e-mail the agency a copy of the above arguments informing them why it cannot unilaterally reduce your child’s adoption assistance. Please then inform Tim O’Hanlon at tpohanlon@gmail.com and include your phone number. To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official about the letter you received from the agency. Alternatively, you may fax a request for a hearing to 614728-9574. State your reasons, include the agency notification about a reduction in assistance.
Neither the Ohio Department of Job and Family Services (ODJFS), nor individual counties may make across the board cuts in existing Title IV-E adoption assistance payments. Here are some reasons why automatic cuts are not legally permissible.
Ohio Regulations at OAC 5101:2-49-12
Ohio rules in conformance with federal law emphasize that adoption assistance agreements must be modified or amended by mutual consent. Paragraph (A) states in pertinent part:
Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. (emphasis added)
Paragraph (B) of OAC 5101:2-49-12 provides in pertinent part:
"At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. (Emphasis added).
Federal Law
The federal Child Welfare Policy Manual is the vehicle though which the federal Administration for Children and Families’, Children’s Bureau interprets federal adoption assistance law. The Children’s Bureau web site makes this very point on the page entitled “Laws and Policies.” The Child Welfare Policy Manual, it states,
"conveys mandatory policies that have their basis in Federal law and/or program regulations. It also provides interpretations of Federal statutes and program regulations initiated by inquiries from State Child Welfare agencies or ACF Regional Offices."
The Child Welfare Policy Manual clarifies and explains Ohio rules. Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.
1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?
Answer: "No. Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence." (Emphasis added).
Federal Court’s Rule that Adoption Assistance Agreements are Contracts
On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.
Finally, in responding to an inquiry about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”
Recommendations
If an adoptive parent with an existing adoption assistance agreement receives a notice from a county or state agency proposing to reduce the child’s adoption assistance payment, they should immediately appeal by contacting the Bureau of State Hearings at ODJFS and requesting a hearing because the agency has proposed to reduce the adoption assistance benefit without grounds. After you have requested a hearing, e-mail the agency a copy of the above arguments informing them why it cannot unilaterally reduce your child’s adoption assistance. Please then inform Tim O’Hanlon at tpohanlon@gmail.com and include your phone number. To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official about the letter you received from the agency. Alternatively, you may fax a request for a hearing to 614728-9574. State your reasons, include the agency notification about a reduction in assistance.
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