Tuesday, March 29, 2016

Correction. I Misinterpreted the Indiana U.S. District Court Case

Boy is my face red!  In an embarrassing act of wishful thinking, I incorrectly characterized the Indiana U.S. District Court case JULIE ARTHUR and DAVID ARTHUR, Plaintiffs, v. DIRECTOR, CENTRAL ELIGIBILITY UNIT, INDIANA DEPARTMENT OF CHILD SERVICES, Defendant, No. 1:15-cv-1718  as a judicial decision.

In fact the document was a complaint filed with the court presented by ACLU attorneys on behalf of the adoptive parents.  The appellant foster to adopt parents objected to the catastrophic drop in levels of support from the foster care payments they were receiving to the amount of adoption assistance proposed by the Indiana Department of Child Services.  Perhaps because this is such a common occurrence in Ohio, I saw what I wanted to see.

The state agency proposed only $52 a day in adoption assistance for the three children combined, which the complaint noted was "less than 36% of the foster care payments and less than the foster care payments that DCS makes for children without special needs."  One child received $65.56 per day in foster care payments (about $1,971 per month). The other two received $40.08 per day or about $1,219 apiece per month.  The total level of foster payments was $145.72 per day or $4,432 per month.

I may also have gotten carried away, by the attorney's reference to the federal Child Welfare Policy Manual and the claim that giving up work outside the home to care for special needs children and the need to purchase or remodel a home to accommodate children's mental health needs are legitimate topics under the heading of family circumstances.

On a happy note, the complaint led to a willingness on the part of state to re-enter negotiations of adoption assistance agreements for the three children.  Unfortunately, I do not know the results of the negotiations. 

So, apologies for my brain slipping out of gear.  We are unable the cite the case as a federal court decision.  We can point to the fact that the arguments raised by the ACLU induced the State of Indiana to re-enter negotiations.  And we note the examples of family circumstances and the references to the federal Child Welfare Policy Manual in addressing Ohio cases in which county agencies propose adoption assistance payments that are a fraction of the children's foster care payments.  

The ACLU complaint can be used to support arguments for adequate adoption assistance rates.  But, in the end, it is not nearly as persuasive as an actual court decision would be.

Mea Culpa.  In the future, I will try to avoid such obvious vacations from reality.  

Wednesday, January 27, 2016

U.S. District Court Decision Declares Indiana Did Not Negotiate Adoption Assistance In Compliance with Federal Law



JULIE ARTHUR and DAVID ARTHUR, Plaintiffs, v. DIRECTOR, CENTRAL ELIGIBILITY UNIT, INDIANA DEPARTMENT OF CHILD SERVICES, Defendant, No. 1:15-cv-1718 

Note: For the full text, click on case name above. When to "Go to  ......"  message appears, click on that.  If you can't locate the case contact me at tpohanlon@gmail.com and I will send you a PDF. copy.



In October, 2015, the U.S. District Court for the Southern District of Indiana in Indianapolis ordered the Indiana Department of Child Services to enter into negotiations for adoption assistance with the adopting family based on the needs of the child and circumstances of the family.  The court found that the state agency had failed to do so and therefore failed to comply with federal law.

The decision is significant because the facts of the case are so similar to cases in Ohio.  The family plaintiffs in the case were the foster parents of three severely disabled children. One child received $65.56 per day in foster care payments (about $1,971 per month).  The other two children received payments of $40.08 per day or about $1,219 apiece per month.  The total level of foster payments was $145.72 per day or $4,432 per month.

The state agency proposed only $52 a day in adoption assistance for the three children combined, which the court noted was "less than 36% of the foster care payments and less than the foster care payments that DCS makes for children without special needs."

Instances in which Ohio county agencies propose adoption assistance payments that are 50% or less than the children's foster care payments also are quite common.  Unfortunately, they are most common in cases where the children have severe disabilities and very high levels of care.  Because of the of their extensive care needs such children receive high foster care payments.  When the foster parents proceed to adopt the children, however, they encounter proposals for adoption assistance that are hundreds of dollars less than each child's foster care payment.  The parents' commitment to their children places them in a cruel dilemma.  Accept an inadequate level of adoption assistance or risk losing the children.
The judge in the Indiana federal District Course case made key findings that support the cases of many adoptive families in Ohio.

For years, Ohio parents have cited relevant portions of the federal Child Welfare Policy Manual to delineate and define the scope of child's needs and family's circumstances.  The judge in ARTHUR validated authority of the the federal manual by Ohio parents by noting, "to assist with the interpretation of states’ duties under Title IV-E of the Social Security Act, the Department of Health and Human Services, through its Children’s Bureau, has created the Child Welfare Policy Manual."  The judge cited crucial portions of the the federal Child Welfare Policy Manual in Section 8.2D.4 which address the negotiation of adoption assistance.

The court determined that considering family circumstances included such things as the loss of income after the foster-adoptive mother quit her job to provide adequate care for the children. The family's need for a larger home to accommodate the need for one child to have a room to himself and the corresponding crowding in the family's current residence was also considered a valid concern under the heading of family circumstances.  In the end, the court found that Indiana Department of Child Services

has not taken into account the loss of the family’s income because Ms. Arthur
has been required to leave her employment. It has not taken into account the fact that the family needs to purchase a new home. It has not taken into account the numerous expenses that the three children will incur both currently and in the future.

Indiana is in the same federal region as Ohio.  (Region V).  This federal court case is one of the few decisions I have encountered that addresses, the negotiation of adoption assistance payments.  JULIE ARTHUR and DAVID ARTHUR, Plaintiffs, v. DIRECTOR, CENTRAL ELIGIBILITY UNIT, INDIANA DEPARTMENT OF CHILD SERVICES can be useful in supporting adopting parents' arguments for adoption assistance payments that reflect the needs of the children and their family circumstances, payments that are reasonable close to their children's foster care payment rates. 

Monday, September 28, 2015

Slight Change in Annual Federal and Non-Federal Shares of Title IV-E Adoption Assistance



On October 1, 2015, the first day of federal fiscal year 2016, the federal financial participation (FFP) rate for Title IV-E Adoption Assistance will change slightly to 62.47% of the cost of each monthly payment.  The non-federal portion will be 37.53% of the cost of each payment.

As readers will recall, the first portion of a federal Title IV-E Adoption Assistance payment of up to $250 per month is covered entirely by federal and state funds. The county is responsible for the non-federal portion of any adoption assistance payment over $250 up to the child’s foster care payment rate.

The following examples illustrate the costs to Ohio Counties of various monthly adoption assistance payments. 

FFP FFY 2016, October 1, 2015 to September 30, 2016

Federal Share  62.47%; Non-Federal Share  37.53%                       
                        
                                                    County
AA  Payment                              Cost
                    
                  $300

$18.77
$400
$56.30
$500
$93.83
$600
$131.36
$700
$168.89
$800
$206.42
$900
$243.95
$1,000
$281.48



Wednesday, August 26, 2015

The Mediation Process, Initial Impressions 4, Additional Issues in Negotiating an Increase in Adoption Assistance

Mediation involving the negotiation of an increase in adoption assistance has an important additional issue to consider that is not present in negotiations involving initial adoption assistance agreements.  The foster care payment rate that determines the maximum amount of adoption assistance that is eligible for federal funding at 62.47% of the cost is not necessarily the amount of foster care that the children received before the adoption. 

 The applicable foster care payment rate, in cases involving a re-negotiation of adoption assistance, is the amount of foster care the child would receive if he or she were placed in a foster home at the time of the re-negotiation.  Ohio Administrative Regulations at OAC 5101:2-49-05(C) state,


The maximum amount of the monthly AA payment shall not exceed the current cost of the monthly foster care maintenance (FCM) payment that was paid or would have been paid by the PCSA if the child had been placed in a foster home.

This last phrase refers to situations in which an adopted child is receiving adoption assistance, but changes have occurred.  The child's problems have significantly increased in their scope or severity, raising the child' s level of care and/or the adoptive parents have suffered setbacks in their family circumstances.  When the adoptive parents request a modification of the adoption assistance agreement to increase the monthly adoption assistance payments, the foster care payments that sets the maximum amount of adoption assistance they may negotiate is the foster care payment the child "would have been paid . . . . if the child had been placed in a foster home at the time of the request for an increase in adoption assistance.  

NOTE: If the county agency disagrees, parents should consult, state adoption assistance policy chief, Dan Shook at dan.shook@jfs.ohio.gov.


The other elements covered in this series including budget considerations, documentation and/or statements by medical or other providers, a personal statement addressing the time, energy and additional costs devoted to the child’ care needs are all the same, except for the emphasis on what has changed regarding the child's needs or family circumstances.  The same sections of the Child Welfare Policy Manual can also be invoked to validate the use of the information above.

For example, suppose a child was receiving $900 per month in foster care support before the initial adoption assistance agreement was signed.  The adoption assistance agreement called for an adoption assistance payment of $500 per month.  Negotiation of  an amendment to an adoption assistance agreement is primarily based on changes in the child’s needs and family circumstances that have taken place since the original agreement was completed.  

In this example, the child who was adopted before the age of two has begun to exhibit developmental and serious behavior problems at the age of five.  The problems include aggressive behavior toward other children and the parents, unpredictable, uncontrollable rages and the inability to sleep.  In addition to her regular psychotherapy, the parents have enrolled the child in a tutoring program, occupational therapy, a YMCA camp soccer to stimulate her development and socialization.  She has also participated in a sleep study. All of these activities add monthly costs to the family budget. 

The child’s adoptive father has had his work hours significantly reduced and the family resources have decreased, while the child’s needs have increased.  As we noted in previous posts, the mediators’ goal is to help the parties reach an agreement.  Typically reaching an agreement will involve the county agency raising the proposed amount of adoption assistance and the parents lowering the amount that they initially requested. 

Here is the problem in cases where changes in the needs of the child and family circumstances have made the cost of sustain a healthy, permanent family more burdensome.  Let’s say, the agency proposed an adoption assistance payment of $500 per month.  If the applicable foster care rate remained $900 per month, a compromise agreement might be $750 per month.

But, as we have seen, the child’s level of care and attendant costs have increased, while the family’s resources have decreased. In order to obtain a sufficient amount of adoption assistance, the parents must try and determine what the child’s foster care rate would be if she were placed in a foster home at the age of five.  Since the state is still in the process of developing a uniform level of care assessment tool, here are a few suggestions.

Parents may know the various levels of care employed by the county agency and/or a private foster care agency with which they are affiliated.  Members of a local foster care support groups might individually and collectively provide information on the county agency’s levels of care and the corresponding foster care payment rates.  With this information, parents have a better chance of determining the change in their own child’s level of care in the three plus years since the original adoption assistance agreements was signed.  The parents can then identify the foster care payment rates associated with their five year old’s current level of care. 

Suppose the child’s escalating behavior and developmental problems are comparable to children in the county agency’s Level 4 category.   Level 4 foster children generally receive foster care payments of about  $1,500 per month.   If the parents can document the changes in the their child’s level of care with statements from pediatricians, therapists and/or other professional providers, the mediation can work toward a revised adoption assistance agreement between $500 and $1,500 per month, instead of $500 and $900 per month.   

Public Records Request

A public records request will at the very least show the range of foster care and adoptive payments made by the county agency. Hopefully, it will also group them by whatever level of care scheme the county employs.  The parents can then present an a argument about their child’s level of care and the foster care payment rate she would receive if she were to be placed in a foster home at the time of re-negotiation of the adoption assistance agreement.  The following is an example of a public records request, which should be sent to the Ohio Department of Job and Family Services Legal Section at LEGAL@jfs.ohio.gov


Dear Sir or Madame,

I am writing you to make a public records request. I request the following public records from Hancock County, minus any identifying information.

1.   Please send me the current foster care payment rates of children in the custody of County.  If you can, please send the daily and monthly rates for each child.  If it is only published in one form (daily or monthly), just send that.  I can make the necessary conversions.
Regarding the foster care payments, please include all children in  __________ County foster homes and all children in foster homes operated by private foster care agencies which provide foster care for children in the custody of __________ County,  The foster homes affiliated with private foster agencies generally serve children with higher levels of care.  With respect to children placed in foster homes affiliated with private agencies, please limit information to the board rates for each child, that is the payments received by the foster parents for the care of each child,  Please exclude administrative payments made to the private foster care agency. 


4. Please include definitions and/or criteria of each level of care employed by the county.  For example, what are the criteria for a Level 4 foster child, or an "Exceptional" care foster child. 


5.  Please send me the _________County's monthly federal Title IV-E adoption assistance payment rates for each child.  If you cannot distinguish between the federal Title IV-E adoption assistance payments and state adoption subsidy payments, please just send both.  

6. Once again, although I am requesting the foster care and adoption assistance payments of each child, please exclude any identifying information.
It would be most helpful if you could send this information to me within 14 days after receiving this request. If there will be a delay, please let me know.  Electronic copies are fine.  

Thank you in advance for your efforts. I cannot overemphasize the importance of this information.
 


Although, most county agencies in Ohio do not employ the “difficulty of care” definitions in OAC rule 5101:2-47-18, designating the basis for higher foster care rates, the parents can use the information they have gathered about their child to place her in one of the three difficulty of care categories. (Specialized, Exceptional or Intensive.)  Let’s suppose that the child’s care needs fits the exceptional difficulty of care category in the one or more of following ways.

From OAC rule 5101:2-47-18


(F) A child eligible for exceptional needs difficulty of care reimbursements is a child placed in a treatment foster home, as defined in rule 5101:2-1-01 of the Administrative Code, if one of the following applies:


(1)      Who presents more severe emotional or behavioral management problems than those children with special needs. These children may display a high degree of impulsive and acting out behavior toward themselves or others which is often characterized by verbal and physical aggression; or have multiple and severe psychiatric, emotional and behavioral management problems ranging from personality disorders, severe mental retardation, or autism to aggression toward animals, others and self; sexual acting out, suicidal behaviors or ideation.

 (3)    For whom a licensed or certified professional, including a psychologist or psychiatrist, licensed social worker or licensed professional counselor must be involved in the child's care on an as-needed basis, but at least on a semi-annual basis . . . . .

 (4)   For whom a licensed or certified professional, including a physician, psychiatrist, psychologist, licensed social worker or licensed professional counselor must be involved in the child's care on at least a monthly basis.

If the parents believe that their child meets one or more of the above criteria, they can ask the child's pediatrician,therapist and other medical who are familiar with the child's escalating problems and changes in the level of care if based on their treatment and knowledge of the children, it is their opinion that the child meets the criteria of the state's definition of exceptional difficulty of care category of foster care.  Here is an example of a written document that the parents could ask the medical professional verify.  It is important to explain the significance of the doctor's response as a means of possibly obtaining an amount of adoption assistance that is compatible with changes in the child's needs and the family's circumstances. 

Dear 

Adoption assistance may be raised to the foster care rate the girls would receive if they were placed in a foster home today.  Since their levels of care have increased dramatically, we believe that their care needs place them in the “exceptional” difficulty of care cate category as defined in Ohio Administrative Code rule 5101:2-47-18(F).  If we can obtain adoption assistance payments at or near the exceptional difficulty of care foster care payment rate, we stand a fighting chance of giving ________ the opportunity to reach their full potential within a permanent loving family.  We are deeply committed to these children, but desperately need an adequate amount of adoption assistance.  The entire purpose of adoption assistance is to enable families of modest means to incorporate traumatized children into nurturing permanent homes.



In your opinion, do _________'s care needs fit at least one of the three criteria for “Exceptional” difficulty of care?  Please check all that apply.
[   ]  Yes           [   ]  No If yes,  [   ]  F1              [   ]  F3             [   ]  F4 


Although the negotiation of amendments to adoption assistance agreements focuses on changes in the child’s needs and family circumstances since the initial agreement, there are also cases in which extenuating circumstances led to an inadequate adoption assistance payment in the first agreement.  Some parents were not given sufficient information about their children’s social and medical history or the opportunity to negotiate adoption assistance payments and exercise appeal rights if necessary.  Other parents report they were told that the county agency never agreed to adoption assistance payments above a certain minimal level such as $350 a month.  They were warned if they pushed for higher payments, the county agency would look for another family, even though the child may have been in their care for two years or more and developed a strong emotional attachment to them. 

In cases where federal and state law was not followed in arriving at the initial adoption assistance agreement, leading to an adoption assistance payment that was not consistent with the child’s needs and family circumstances, the parents can present those facts as well as documenting  increases in the child’s care needs, changes in family circumstances and citing the foster care payment rate the child would receive if she were placed in an appropriate foster home at the time of the request for an increase in adoption assistance.