The following is a detailed policy brief presented to ODJFS in a November meeting. At the end of the meeting, I was told that the Department would contact me with an answer to the request outlined below. I have contacted ODJFS twice since that time and have received no response. Delay is costing adoptive families the assistance to which their children are clearly eligible.
The Problem: The Ohio Department of Job and Family Services under the Taft Administration never communicated to county agencies, ODJFS hearing officers and ODJFS Legal Services staff that:
The online Child Welfare Policy Manual “conveys mandatory policies” and provides authoritative interpretations of federal Title IV-E laws.
Applicable provisions in the Child Welfare Policy Manual supersede any contrary, inconsistent or incompatible provisions in the Ohio Administrative Code (OAC).
The revised January 2007 OAC Title IV-E adoption assistance regulations found in OAC 5101:2-49 contain several provisions that are out of compliance with federal law as set forth in the federal Child Welfare Policy Manual.
As a consequence, eligible special needs children have been denied access to the adoption assistance program on the basis of provisions in the OAC that are out of compliance with federal law. The most dramatic example of this took place in the Cress hearing in which the hearing officer announced that the key sections of the OAC were incompatible with federal law as interpreted by the Child Welfare Policy Manual. She said however that she was only authorized to utilize the OAC in rendering her decision. The denial was upheld at the administrative review level by an ODJFS staff attorney who said that hearings only involved the administrative code. (See hearing, Appeal 1358848).
Federal Region V official Mary Doran was somewhat astonished to learn that the significance of the Child Welfare Policy Manual. as the primary means of administering the federal Title IV-E program and an authoritative source for the interpretation of federal law had not been communicated by ODJFS to county agencies, hearing officers and other appropriate parties. This omission would not have been revealed in IV-E State plan reviews because it was assumed by federal administrators that ODJFS would have informed relevant parties as a matter of course.
We request that the Director of ODJFS issue a procedure letter informing county agencies, hearing officers and the ODJFS Office of Legal Services that the Child Welfare Policy Manual is the authoritative interpretation of federal Title IV-E law and supersedes the OAC where there are areas of incompatibility, inconsistency or conflict.
The Child Welfare Policy Manual can then serve as a means for review of the revised January 2007 adoption assistance rules. I had a productive meeting with Rhonda Abban a few weeks ago regarding two problems in the existing rules. Ms. Abban is both knowledgeable and helpful.
Finally, the state adminstrative hearing decision in Appeal 1358848 should be reversed based upon the failure to recognize the primacy of federal law over the OAC.
Detailed Argument
Throughout their existence , the federal Children's Bureau of the Administration for Children and Families has administered Title IV-E adoption assistance and foster care maintenance programs though various policy issuances including Policy Information Questions (PIQs), Information Memoranda (IMs) and Policy Announcements (PAs). Unlike other federal entitlement programs, their are few rules in the Code of Federal Regulations that pertain to the adoption assistance program.
Around 2002, federal officials organized the various policy issuances into an online Child Welfare Policy Manual, which is continually updated in light of inquiries from the states. Since that time the Child Welfare Policy Manual has been the means through which the Children’s Bureau has interpreted federal law and administered the adoption assistance program. Ohio has pledged to abide by the Child Welfare Policy Manual in its IV-E State Plan as a Condition for Federal Financial Participation.
The online Child Welfare Policy Manual “conveys mandatory policies” and provides authoritative interpretations of federal Title IV-E laws.
Applicable provisions in the Child Welfare Policy Manual supersede any contrary, inconsistent or incompatible provisions in the Ohio Administrative Code (OAC).
The revised January 2007 OAC Title IV-E adoption assistance regulations found in OAC 5101:2-49 contain several provisions that are out of compliance with federal law as set forth in the federal Child Welfare Policy Manual.
As a consequence, eligible special needs children have been denied access to the adoption assistance program on the basis of provisions in the OAC that are out of compliance with federal law. The most dramatic example of this took place in the Cress hearing in which the hearing officer announced that the key sections of the OAC were incompatible with federal law as interpreted by the Child Welfare Policy Manual. She said however that she was only authorized to utilize the OAC in rendering her decision. The denial was upheld at the administrative review level by an ODJFS staff attorney who said that hearings only involved the administrative code. (See hearing, Appeal 1358848).
Federal Region V official Mary Doran was somewhat astonished to learn that the significance of the Child Welfare Policy Manual. as the primary means of administering the federal Title IV-E program and an authoritative source for the interpretation of federal law had not been communicated by ODJFS to county agencies, hearing officers and other appropriate parties. This omission would not have been revealed in IV-E State plan reviews because it was assumed by federal administrators that ODJFS would have informed relevant parties as a matter of course.
We request that the Director of ODJFS issue a procedure letter informing county agencies, hearing officers and the ODJFS Office of Legal Services that the Child Welfare Policy Manual is the authoritative interpretation of federal Title IV-E law and supersedes the OAC where there are areas of incompatibility, inconsistency or conflict.
The Child Welfare Policy Manual can then serve as a means for review of the revised January 2007 adoption assistance rules. I had a productive meeting with Rhonda Abban a few weeks ago regarding two problems in the existing rules. Ms. Abban is both knowledgeable and helpful.
Finally, the state adminstrative hearing decision in Appeal 1358848 should be reversed based upon the failure to recognize the primacy of federal law over the OAC.
Detailed Argument
Throughout their existence , the federal Children's Bureau of the Administration for Children and Families has administered Title IV-E adoption assistance and foster care maintenance programs though various policy issuances including Policy Information Questions (PIQs), Information Memoranda (IMs) and Policy Announcements (PAs). Unlike other federal entitlement programs, their are few rules in the Code of Federal Regulations that pertain to the adoption assistance program.
Around 2002, federal officials organized the various policy issuances into an online Child Welfare Policy Manual, which is continually updated in light of inquiries from the states. Since that time the Child Welfare Policy Manual has been the means through which the Children’s Bureau has interpreted federal law and administered the adoption assistance program. Ohio has pledged to abide by the Child Welfare Policy Manual in its IV-E State Plan as a Condition for Federal Financial Participation.
All, states, including Ohio, must submit a IV-E state plan as a condition for federal financial participation. In the introduction to the Ohio IV-E state plan, ODJFS pledges to abide by all applicable federal laws, regulations and official policy issuances as a condition for receipt of federal funding. (Emphasis added).
These "official" policy issuances have been consolidated in the online federal Child Welfare Policy Manual.
The introduction to the IV-E State Plan reads in pertinent part as follows:
As a condition of the receipt of Federal funds under title IV-E of the Social Security Act (hereinafter, the Act), the Agency (Name of State Agency) (hereinafter "the State Agency") submits herewith a State plan for the program to provide, in appropriate cases, foster care, independent living (at State option) and adoption assistance under title IV-E of the Act and hereby agrees to administer the program in accordance with the provisions of this State plan, title IV-E of the Act, and all applicable Federal regulations and other official issuances of the Department. (Emphasis added).
A copy of Ohio’s IV-E State Plan may be found by going to the ODJFS web site at: http://jfs.ohio.gov/ocf/publications.stm and scrolling down to State Plans. A template of IV-E state plans may be found on the federal Children’s Bureau Web Site: at Child Welfare Policy Manual 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 site is http://www.acf.hhs.gov/programs/cb/laws_policies/index.htm#cwpm
Hearing decision (Appeal 1358848) clearly demonstrates that hearing officers and county agencies have consistently ignored quotations and cites from the Child Welfare Policy Manual in rendering decisions on eligibility and amounts of assistance, even when they blatantly conflict with OAC regulations. For years, I have encouraged parents to include both OAC rules and sections of the Child Welfare Policy Manual in their hearing presentations, but the latter is always ignored until the appeal reaches the courts. Interestingly courts in states across the country, particularly the Commonwealth Court of neighboring Pennsylvania have often based their decisions on federal policy issuances. I can supply a number a number of examples of such decisions that date back to the 1990s.
Request
Given the fact that otherwise eligible special needs children are being denied access to adoption assistance, an official communication from ODJFS directing county agencies, hearing officers and ODJFS Legal Services staff to abide by the Child Welfare Policy Manual would be the quickest and most efficient means of addressing this serious compliance problem. The Child Welfare Policy Manual could then be used as the basis for a thorough review of the revised 2007 OAC adoption assistance rules. I have already submitted policy briefs and had a productive discussion on two of the most egregious errors in the rules with Rhonda Abban, the section chief in charge of adoption at ODJFS. Such a procedure letter might read as follows:
To: County Children Services Agencies, Private Child Placing Agencies, State Hearing Officers, the ODJFS Office of Legal Services and the Office of Child and Family Services.
This letter is to inform you that the federal Child Welfare Policy Manual is the authoritative source for the interpretation of federal Title IV-E Adoption Assistance and Foster Care Law. From the outset, the federal Children’s Bureau has relied on policy issuances rather than administrative regulations to administer the Title IV-E program. Around six years ago, the Children’s Bureau consolidated the policy issues into an online manual that is regularly updated. The Child Welfare Policy Manual, consequently, supersedes any rules in the Ohio Administrative Code, which may be inconsistent with its provisions.
Effectively immediately, the Child Welfare Policy Manual is to be consulted when any dispute arises over eligibility, benefit and procedural issues in the Title IV-E Adoption Assistance and Foster Care Maintenance Programs. County child welfare agencies are instructed to rely on its provisions in determining eligibility and benefits. Hearing officers and administrative reviewers are instructed to consult applicable sections of the Child Welfare Policy Manual in rendering hearing and appeal decisions. Ohio Adoption Assistance and Foster Care Maintenance rules will be reviewed and amended to conform to the Child Welfare Policy Manual
ODJFS has been out of compliance with its own IV-E State Plan for several years and such a letter would not only fix that problem, but curtail the denial of adoption assistance to eligible special needs children. Following the letter, the OAC adoption assistance rules could be reviewed on a priority basis. I would like to be part of that review. By taking these steps, the Strickland Administration and ODJFS can earn the gratitude of adoptive parents across the state.
