Tuesday, January 29, 2008

Cuyahoga County Announces a Decrease in County Funding for Adoption Assistance in Probable Violation of Federal and State Law

A recent communication by the Cuyahoga County Department of Job and Family Services may violate federal and state adoption assistance laws and has significant implications for adoptive families across the state. On November 27, 2007, the Cuyahoga County Department of Job and Family Services, sent a letter to all adoptive families with existing Title IV-E adoption assistance agreements. The “Important Notice to Adoptive Assistance Payments” informed recipients that amount of support provided by the county was going to decrease. The county’s decision was prompted by the knowledge that the state was increasing its level of financial participation as of January 2008.

As we noted in December 30, 2007 Blog, State Increases Non-Federal Financial Participation in Federal Title IV-E Adoption Assistance and State Adoption Maintenance Subsidy Programs, ODJFS will provide the non federal portion (about 40%) of federal Title IV-E adoption assistance payments up to a maximum $300 per month. Previously the state’s financial participation was limited to payments of $250 per month. This means that for every IV-E adoption assistance payment of $300 per month, federal financial participation will be approximately $180 and state financial participation about $120. As before, public county children services agencies are responsible for the non-federal portions of any amount of assistance over $300 per month.

The increase in state financial participation according to ODJFS Family, Children and Adult Services Procedure Letter No. 129 of December 18, 2007 applies to all initial Title IV-E adoption assistance agreements completed after January 1, 2008. In addition,



Effective with the January 2008 subsidy payments, any adoption subsidy agreement greater than $300 per month, the state's participation will automatically be increased up to the maximum of $300. This increase does not change the public children services agency's (PCSA) responsibility of providing the county match for the AA payment in excess of $300 per month.

On the other hand, “for any adoption subsidy agreement equal to or less than $250 per month, the state's participation will not be automatically increased. In order for an increase to be issued, a revised adoption subsidy agreement must be entered into by the PCSA and adoptive parent(s).”

Does the action taken by ODJFS permit county agencies to engage in unilateral cuts in county support without negotiating an amendment to the individual child’s adoption assistance agreement as long as the total amount of adoption assistance is not reduced? This is Cuyahoga County’s strategy for cost shifting and if acceptable can only encourage other county agencies to follow suit.

Clearly, ODJFS as the authorized Title IV-E agency may make across the board increases in adoption assistance. County agencies, however, may not make unilateral changes in adoption assistance. Ohio Administrative Code rule 5101:2-49-12(D) in reflecting federal law provides that:

A PCSA shall not modify the amount of the AA payment without prior notification
and agreement by the adoptive parent(s) unless the adoptive parent(s) does not
comply with the requirements to determine continuing eligibility requirements
pursuant to rule 5101:2-49-10 of the Administrative Code. In all other cases the
PCSA shall not modify the amount of the AA payment without prior notification
and agreement by the adoptive parent

By reducing the county’s share of funding, Cuyahoga County is clearly in violation of the law. The county’s unilateral reduction in support prevents individual special needs adopted children from receiving an increase in their monthly adoption assistance benefit. The state’s increase in financial participation is its first since 1986. Obviously, it was intended to increase levels of support for adoption assistance. Given that Cuyahoga’s cuts in adoption assistance result in a net loss to adoptive children by essentially wiping out the state increase, the agency’s action is illegal.

Neither Cuyahoga, nor any other Ohio PCSA may reduce adoption assistance without negotiating with individual adoptive families and securing an agreement to modify the individual child’s adoption assistance agreement. Families affected by Cuyahoga’s actions or those of other agencies should contact the ODJFS. I would suggest contact Rhonda Abban by e-mail at ABBANR@odjfs.state.oh.us, Sandra Holt, Deputy Director for Family, Children and Adult Services through her administrative assistant Julia Bourdreau at bourdj@odjfs.state.oh.us and Director Helen Jones-Kelley through Laquita Kelly at KELLYL@odjfs.state.oh.us.




Thursday, January 10, 2008

New Federal Policy Interpretation: State May Not Reduce or Suspend Adoption Assistance if Parents Fail to Complete and Return Annual Eligibility Form

The North American Council on Adoptable Children (NACAC) reports a new federal interpretation published on December 12, 2007 in response to the question:

Can a State suspend or reduce a title IV-E adoption assistance subsidy if the adoptive parents fail to renew or recertify the adoption assistance agreement?

The answer, which will be posted soon in Section 8.2B.9 of the federal Child Welfare Policy Manual, is “no.” The policy issuance acknowledged that adoption parents were responsible for keeping agencies informed about “material changes” that might affect the amount of adoption assistance, but

a State cannot reduce or suspend adoption assistance if the adoptive parents fail to reply to the State’s request for information, renewal or recertification of the agreement. Once an eligible child is receiving title IV-E adoption assistance pursuant to an agreement, adoption assistance continues until either the adoptive parents concur to a change or one of the statutory conditions are met for termination of the assistance (section 473(a)(4) of the Social Security Act and Child Welfare Policy Manual Section 8.2B.9 Q/A #2). Therefore, suspensions or reductions in a title IV-E adoption assistance payment are not permitted without the concurrence of the adoptive parents under section 473(a)(3) of the Act .

The federal policy issuance affects Ohio Administrative Code (OAC) rule 5101:2-49-10, Paragraph A, which provides that

The public children services agency (PCSA) responsible for the adoption assistance (AA) agreement shall provide the adoptive parent(s) with the JFS 01451B "Title IV-E Adoption Assistance Continuing Eligibility Determination" (10/2006) to be completed annually or whenever there is a significant change in the family situation. Within fourteen working days of receipt of the JFS 01451B the adoptive parent(s) shall complete and return the JFS 01451B to the PCSA.


The policy interpretation makes it clear the agency may not suspend or reduce the child’s adoption assistance if the adoptive parents fail to complete and return the annual continuing eligibility form within fourteen days or if they ignore it altogether. Parents would only be obliged to respond if they experienced significant changes in their circumstances that might suggest a reduction in the amount of adoption assistance.

Given that the cost of raising children, especially special needs children, tends to increase over time. Instances in which the child’s needs or family circumstances improve to such an extent that a reduction in adoption is warranted are rare. On the other hand, in a much more likely scenario, adoptive parents may request a modification to an existing adoption assistance agreement for the purpose of increasing the monthly payment at any time.

Thursday, January 3, 2008

Policy Brief: Ohio is in Violation of It's IV-E State Plan; The Child Welfare Policy Manual as the Authoritative Source of Federal Law

In the previous posting of Wednesday January 2, 2008, I requested adoptive parents and advocates to e-mail the Ohio Department of Job and Family Services (ODJS )and request that the Director Helen Jones-Kelley issue a procedure letter establishing the online federal Child Welfare Policy Manual as the authoritaive source for interpreting Title IV-E adoption assistance law. Current provisions in Ohio's revised 2007 adoption assistance regulations found in Section 5101:2-49- of the Ohio Adminstrative Code are out of compliance with federal law and as a consquence, eligible special needs children are being denied federal adoption assistance. (See the January 2, 2008 posting for details).




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.



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.

Wednesday, January 2, 2008

State Adoption Assistance Rules Contrary to Federal Law

Certain provisions in Ohio's Title IV-E Adoption Assistance rules are in conflict with federal law as interpreted by the federal Child Welfare Policy Manual. The 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."

Unfortunately, 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
applicable provisions in the Child Welfare Policy Manual supersede any contrary, inconsistent or incompatible provisions in the Ohio Administrative Code (OAC). As a result, eligible special needs children have been denied federal Title IV-E adoption assistance because county agencies and hearing officers have been trained to rely exclusively on state rules.

Ultimately, a systematic review and correction of errant state rules must take place, but such reviews are quite time consuming. We ask adoptive families and their supporters to contact ODJFS and request that the Director Helen Jones-Kelley issue a procedure letter intructing county agencies, hearing officers and ODJFS Legal Services staff to abide by the Child Welfare Policy Manual . Such a communication would not only correct a longstanding flaw in Ohio's adoption assistance policy, but prevent eligible special needs children from being denied federal adoption support. The Child Welfare Policy Manual could then be used as the basis for a thorough review of the revised 2007 OAC adoption assistance rules in OAC 5101:2-49.

Please contact Sandra Holt, Deputy Director, Family, Children and Adult Services through her Adminstrative Assistant Julia Bourdeau by e-mail at bourdj@odjfs.state.oh.us. Also contact the Office of ODJFS Director Helen Jones-Kelley by fax at Fax (614)466-2815.

The following is a possible draft you can use as an example.

The Ohio Department of Job and Family Services has never informed county agencies and hearing officers that the federal Child Welfare Policy Manual is the authoritative source for interpretation of Title IV-E adoption assistance law and supercedes any state regulations in the Ohio Adminstrative Code that are contrary to its provisions. Errors in current OAC adoption assistance rules are resulting in the denial of adoption assistance to special needs children that are clearly eligible under fedearlk law. [Add any personal problems you have exerienced or are aware of involving adoptive families].

To prevent further injustices and to bring Ohio into conformity with its own IV-E State Plan, we request that Director Helen Jones-Kelley correct the omissions of the Taft Administration and issue a procedure letter somewhat like the following.

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.

Effective 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.



Contact me by e-mail at tohanlon@columbus.rr.com with any questions, or by phone at 614-299-0177. In the coming days, I will publish detailed policy briefs on the state's failure to establsih the federal Child Welfare Manual as the authoritative source of federal adoption assistance law, as well as specific critiques of Ohio rules that are out of compliance with federal law.