Tuesday, September 2, 2008

Errors in the Negotiation of Adoption Assistance; The Need for a Consistent Model

A number of Ohio county agencies insist that prospective adoptive parents agree to unreasonably low federal Title IV-E adoption assistance payments. Frequently, these agencies base their positions on claims that are incompatible with state and federal law. The most common error is the assumption that monthly adoption assistance payment rates must be based only on costs that are directly related to treatment of the child’s special needs, which are not otherwise covered by health insurance, Medicaid or some other benefit. Predictably, this narrow position results in absurdly low offers of adoption assistance which responsible parents have little choice but to oppose.

Ohio, unlike many states, does not have rate schedules of adoption assistance payments based upon age ranges and levels of care. State A, for example, might feature three rate schedules: Regular, Special and Exceptional, each with age ranges from 0 – 5; 6 – 12 and 12 and up. The number of separate rate schedules varies from state to state. Ohio relies on case by case negotiation. Therefore, it is vitally important that all parties understand and abide by federal and state guidelines. Alas, such is often not the case.

After a child is determined eligible for adoption assistance, the parents negotiate an adoption assistance agreement with the county agency that made the eligibility decision. The county agency, known in state regulations as the public children’s services agency or PCSA, represents the Ohio Department of Job and Family Services, the designated state agency charged with oversight of the federal Title IV-E foster care maintenance and adoption assistance programs.

Federal law, the federal Child Welfare Policy Manual and rule 5101:2-49-05 of the Ohio Administrative Code all specify that the negotiation of Title IV-E adoption assistance agreements must be based on a consideration of the child’s needs and family circumstances.

The Child Welfare Policy Manual affirms that

“During the negotiation of an adoption assistance agreement, it is important to keep in mind that the circumstances of the adopting parents and the needs of the child must be considered together. The overall ability of a singular family to incorporate an individual child into the household is the objective.” (See Question 3, Section 8.2D.4 “TITLE IV-E, Adoption Assistance Program, Payments, Rates”)

Federal policy recognizes that special needs and family circumstances are inextricably linked. It is quite common for adoptive parents to give up careers in order to become full-time caregivers, with a corresponding loss of income, health insurance. Parents find themselves devoting increased amounts of time, taking a child to therapy and negotiating with school officials over the child’s academic program and emotional adjustment. The adoptive parents of an emotionally damaged child must devote an extraordinary amount of energy to care and supervision. Abused and neglected children may have irregular sleeping habits, destroy family property and pose a threat to family pets and siblings.

The increase in parental responsibilities, often accompanied by putting a career on hold, enables the parent to more effectively meet the child’s emotional needs, but often results in a loss of family income which, in turn, makes it more difficult to cover other expenses. This is the type of problem that the federal Child Welfare Manual contemplates when it refers to “the adoptive family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as the overall capacity to meet the immediate and future needs (including educational) of the child.”

In recognizing the obvious the impact of a child’s special needs on family circumstances and visa versa, federal policy makes no distinction between the specialized and ordinary needs of the child. Question 1 in Section 8.2D.4 of the Child Welfare Policy Manual, notes:

“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.”

“Unlike other public assistance programs in the Social Security Act,” it explains, “the title IV-E adoption assistance program is intended to encourage an action that will be a lifelong social benefit to certain children and not to meet short-term monetary needs during a crisis.” In question 2 of Section 8.2D.4 the Manual adds, “agreements that are not negotiated to the specific needs of the adoptive child and the circumstances of the family, however, are not permissible.”

The needs of the child and circumstances of the family are intended to function as broad categories. The adopting parents have the best idea of current and anticipated costs as well as the adjustments and sacrifices they will need to make on behalf of a child whose legal ties to his or her birth family have been permanently severed. Ultimately, the negotiation should address this question: Given your situation and the child’s current and anticipated needs, what amount of monthly adoption assistance payment will enable you to have a reasonable chance of providing a permanent, healthy family for the child?

Adoptive parents are both enraged and amused by the all too frequent suggestions that their quest for adoption assistance is motivated by unrealistic expectations or outright greed. While adoption assistance often serves as a crucial source of support, adults who devote their lives to caring for severely abused and neglected children are no strangers to sacrifice. Adopting a special needs child is an admirable calling, but as a money making scheme leaves much to be desired.

Ending The Foster Care Life Sentence, a 2006 study by Children’s Rights of New York, surveyed 250 adoptive and prospective adoptive parents from Illinois, Kentucky, Minnesota, Missouri, Oregon, and Texas and found “of parents who had already adopted, 65% said they could not have done so without an adoption subsidy.”

While adoption assistance provides sorely needed help, only the most na├»ve parent expects the subsidy relieve them of financial burdens associated with raising a special needs child. The 2006 Children’s Rights study determined:

“more than half (57%) of survey respondents who had already adopted said the subsidy amount was not sufficient to meet the child’s needs. Of those survey respondents considering adoption, 59% anticipated that the available subsidy would not be sufficient. Additionally, 7% of adoptive and prospective adoptive parents who responded that the subsidy was sufficient to meet the child’s current needs indicated uncertainty that the subsidy would be sufficient to meet the child’s needs in the future.”

Adoption Assistance payments are typically less than foster care payments in Ohio. HITTING THE M.A.R.C.; Establishing Foster Care Minimum Adequate Rates for Children, a 2007 study by Children’s Rights, estimated that current foster care rates did not provide adequate support.

A 2008 report by the North American Council on Adoptable Children, notes that in Fiscal Year 2006, “59 percent of children adopted from foster care were adopted by foster parents and 26 percent were adopted by relatives.” According to the report, entitled The Value of Adoption Subsidies,

“most foster families are in the low to lower middle income range, and many grandparents and other relatives who care for children in foster care are on fixed incomes. Without subsidies, many parents would not have the means to adopt children from foster care. Just as foster care maintenance payments do not cover the true costs involved in the basic care of a child, adoption subsidies are modest financial supports that provide adoptive families with additional resources to meet their children’s needs.”

In sum, the adoption assistance rate sought by parents is best described as an essential, albeit modest supplemental payment that will give them a fighting chance of providing a permanent home for their child.

Why don’t negotiations follow federal and state laws?

There appear to be two primary reasons why a number of Ohio county agencies consistently fail to follow federal and state guidelines in negotiating adoption assistance agreements.

ODJFS has not established a statewide “best practices” model that addresses the negotiation of adoption assistance agreements. Nor, has the state agency conducted in depth training on this crucial area of adoption assistance for well over a decade.

As a consequence, a number county case workers are poorly informed about relevant regulations and hearing officers render inconsistent decisions. Members of both groups often lack a coherent conceptual framework that captures the essential purpose of adoption assistance. Is the purpose of the program, after all, to actively look for ways to help special needs children secure support or to devote most of the worker’s time and energy to a search for reasons to deny as much support as possible?

After all these years, treating adoptive parents as partners and entering into negotiations with no pre-determined outcome is still foreign to agency culture.

Most federal assistance programs combine eligibility with the amount of benefit by applying means tests. Family income resources and size determines the monthly payment. Eligibility and negotiation of a monthly payment are not only separate steps in the adoption assistance program, but there is no quantitative formula for arriving at a proper level of support. How much monthly adoption assistance is fair or adequate? Such questions rely on perceptions of the child’s overall needs and the family’s circumstances. Reasonable people can disagree about such matters.

The process of negotiation is not completely open-ended, however. The federal portion of adoption assistance in Ohio accounts for around 60% of the payment. Federal financial participation is limited to the rate of support the child would receive in a foster home suitable to his or her level of care. This foster care rate functions as a practical ceiling in the negotiation of adoption assistance agreements. Since a majority of special needs children are adopted by their foster parents, the foster care payment takes on even more relevance as a guideline, particularly since the rate was based on level of care assessments made by the county agency.

The foster care rate can and should function as reference point for both the agency and the parents. As such, the parties might end up a few hundred dollars apart in negotiations where the foster care payment was a specialized rate of $1,400 a month, but a situation in which the agency insisted on an adoption assistance payment that was less than half of the foster care rate would be relatively rare. Unfortunately, that situation is all too common today.

The relative financial participation by the state and counties in providing the non-federal matching funds for the IV-E adoption assistance program has also been a long standing source of conflict over the negotiation of adoption assistance agreements. We will address this problem in a future article.