Governor Strickland signed an Executive Order-15S: Immediate Amendment of Rules Regarding the Payment of Certain Adoption Expenses on Monday, Aug. 10, 2009, paving the way for emergency rules implementing budget cuts in the state adoption maintenance subsidy (SAMS) program. The reduction in payments to $240 per month will take effect on September 1, 2009.
Families with payments above $300 a month in which the county agency agreed to absorb the additional cost should appeal any attempt by the county to reduce the payment to $240 by requesting a state administrative hearing. The information on how to request a hearing should be included on the IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY that will sent to each SAMS recipient. (See below). Remember that adoptive families have only fifteen days to request a hearing. The normal period is ninety days.
The announced reductions in state funding do not affect county funding and parents can legitimately argue that the county agency entered into the agreement based upon the needs of the child and circumstances of the family. Executive Order 15-S and the newly enacted SAMS rules refer to the availability of state funds, not county funds. Accordingly, parents with state subsidies over $300 per month can argue that that justification for reductions in state funding has no bearing on county financial participation.
Suppose, for example, that a child a state adoption maintenance subsidy of $600 per month. Until September 1, the state’s financial contribution is $300 and the county’s share is $300. While the state might succeed in reducing its share by $60 per month based upon the new rules, the county has no justification for a similar cut and the adoptive parents have a valid argument that the subsidy should not drop below $540 per month.
New Rules and Forms
The following presents the two new emergency SAMS rules, along with a copy of the notification each SAMS recipient will receive.
5101:2-44-06 Eligibility of adoptive family and adoptive child for the state
adoption maintenance subsidy program.
(A) In addition to the requirements in paragraph (B) of this rule, all of the following
eligibility requirements for the state adoption maintenance subsidy program shall
be met:
(1) The child is in the permanent custody of a public children services agency
(PCSA) or a private child placing agency (PCPA) and is legally available for
adoption.
(2) The child is a special needs child who, prior to the adoptive placement, has at
least one of the following needs or circumstances that may be a barrier to
placement or adoption or a barrier to a child being sustained in a substitute
care placement or adoptive home without financial assistance because the
child is at least one of the following:
(a) Is in a sibling group which should be placed together.
(b) Is a member of a minority or ethnic group.
(c) Is six years of age or older.
(d) Has remained in the permanent custody of a PCSA or PCPA for more
than one year.
(e) Has a medical condition, physical impairment, mental retardation or
developmental disability.
(f) Has an emotional disturbance or behavioral problem.
(g) Has a social or medical history or the background of the child's biological
family has a social or medical history which may place the child at risk
of acquiring a medical condition, a physical, mental or developmental
disability or an emotional disorder.
(h) Has been in the home of his or her prospective adoptive parents as a foster
child for at least one year and would experience severe separation and
loss if placed in another setting due to his or her significant emotional
ties with these foster parents as determined and documented by a
qualified mental health professional.
(i) Has experienced previous adoption disruption or multiple placements.
(3) The child is either:
(a) Under the age of eighteen.
(b) Between eighteen and twenty-one years of age and is mentally or
physically handicapped as diagnosed by a qualified professional.
(i) For the purpose of this rule, a qualified professional is defined as an
audiologist, licensed independent social worker, licensed
professional clinical counselor, medical doctor, orthopedist,
psychiatrist, psychologist, or speech/language pathologist. The
qualified professional shall only diagnose handicaps within the
professional's area of expertise.
(ii) A clear written statement of the child's mental or physical handicap
shall be supported by an assessment or evaluation from the
qualified professional including an opinion as to the origin of the
problem, past history, prognosis, and recommendations related to
future treatment needs.
(4) A PCSA or PCPA has approved the adoptive parent for adoptive placement
pursuant to Chapter 5101:2-48 of the Administrative Code. If a PCPA
approved the adoptive placement, the PCPA shall provide the PCSA with the
JFS 01673 "Assessment for Child Placement (Homestudy)" (rev. 8/2005),
JFS 01654 "Adoptive Placement Agreement" (rev. 10/2001) and JFS 01616
"Social and Medical History" (rev. 6/2006).
(5) The adoptive parent has applied and has been determined ineligible for the Title
IV-E adoption assistance program, in accordance with rule 5101:2-49-02 of
the Administrative Code. Eligibility for reimbursement of nonrecurring
adoption expenses under Title IV-E, 42 U.S.C. 673, June 17, 1980, pursuant
to rule 5101:2-49-21 of the Administrative Code, does not constitute
eligibility for Title IV-E adoption assistance.
(6) The adoptive family has the capability of providing the permanent family
relationships needed by the child.
(7) The needs of the child are beyond the economic resources of the adoptive
family.
(8) The acceptance of the child as a member of the adoptive parent's family would
not be in the child's best interest without state adoption subsidy payments.
(9) The adoptive family has completed the JFS 01613 "Application for State
Adoption Subsidy" (rev. 7/2004) and the PCSA has approved or denied the
JFS 01613 prior to the adoption finalization.
(B) An adoptive family is eligible for payments under the state adoption maintenance
subsidy if all the requirements in paragraph (A) of this rule are met and:
(1) The adoptive parent's annual gross income does not exceed one hundred and
twenty per cent of the median income of a family of the same size, including
the adoptive child, as most recently determined for this state pursuant to
division (B) of section 5153.163 of the Revised Code.
(2) The adoptive parent verifies the family's annual gross income by providing
verification, as applicable, from the most recent U.S. department of internal
revenue service (IRS) income tax form, proof of receipt of benefits from the
social security administration, proof of receipt of workers compensation, or
other income verification from other providers of pension benefits.
(C) The state adoption subsidy payment amount shall be agreed upon between the PCSA
and the adoptive parent and shall be based upon the needs of the adoptive child, the
circumstances of the adoptive family, and in accordance with the PCSA's adoption
policy.
(D) The state adoption maintenance subsidy program shall provide a maximum payment of two hundred forty dollars per month per child for an approved state adoption maintenance subsidy.
Effective: 08/13/2009 Emergency
5101:2-44-08 Redetermination and amendment of a state adoption
maintenance subsidy.
(A) When the Ohio department of job and family services (ODJFS) determines that state
funds are not available to maintain the state adoption maintenance subsidy program
at the current maximum monthly funding level and notifies the public children
services agency (PCSA) of the unavailability of state funds, the PCSA shall take
the following actions:
(1) Notify any adoptive parent receiving a monthly subsidy that is greater than two
hundred forty dollars per child. This PCSA notification of families shall
occur:
(a) No later than fifteen days before the action commences.
(b) By use of a notice specifically developed and designated by ODJFS.
(2) Enter into an amended agreement with the adoptive parent of the JFS 01615
"Approval for State Adoption Subsidy" (rev. 7/2004) within thirty days of the
effective date of this rule. The amended JFS 01615 shall provide for not
monthly payment in excess of the amount ODJFS has determined as available
for the program. Until such time as an amended agreement is executed, the
current JFS 01615 is terminated for any monthly amount in excess of two
hundred forty dollars per child.
(A)(B) Except as provided in paragraph (C) of this rule, the (PCSA) shall complete a redetermination of each state adoption maintenance subsidy one year from the initial effective date of the JFS 01615 "Approval for State Adoption Subsidy" (rev. 7/2004) or most recent
redetermination and amendment date and annually thereafter.
(C) Any recalculation and amendment to the JFS 01615 to address availability of state funds as provided in paragraph (A) of this rule does not change the date of the redetermination of the subsidy.
(B)(D) Except as provided in paragraph (A) of this rule, to initiate the redetermination
process, the PCSA shall provide written notice to the adoptive parent at least sixty
calendar days prior to the anniversary date of the effective JFS 01615 or most
recent redetermination or amendment.
(C)(E) Except as provided in paragraph (A) of this rule, the PCSA shall redetermine
the state adoption subsidy more often than annually upon written request of the
adoptive parent or if the PCSA is aware of substantial changes in the adoptive
parent's financial situation or the adoptive child's special needs. A redetermination
or amendment shall occur when:
(1) The adoptive parent's or adoptive child's eligibility status has changed.
(2) The addition or deletion of a state adoption maintenance subsidy is necessary.
(D)(F) Except as provided in paragraph (A) of this rule, the following are necessary
to redetermine or amend a JFS 01615:
(1) The adoptive parent shall provide written verification of continued financial
eligibility.
(2) The PCSA shall determine, from verification submitted by the adoptive parent,
if the adoptive child and the adoptive parent remain eligible pursuant to rule
5101:2-44-06 of the Administrative Code.
(E)(G) Except as provided in paragraph (A) of this rule, the PCSA shall complete the
redetermination and provide written notification to the adoptive parent of the
redetermination outcome at least fifteen days prior to the annual anniversary date of
the JFS 01615 or most recent redetermination, or within thirty days of a request for
an amendment.
(F)(H) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in no change or a change in the amount of state adoption
subsidy, the PCSA shall use the JFS 01615 to inform the adoptive parent of the
results and the effective date of the redetermined subsidy.
(G)(I) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in a decrease, suspension or termination of the state adoption
subsidy, the PCSA shall use the JFS 04065 "Prior Notice of Right to a State
Hearing" (rev. 5/2001) to inform the adoptive parent of the reason for the action, its
effective date and the right to a state hearing pursuant to section 5101.35 of the
Revised Code and division 5101:6 of the Administrative Code.
(H)(J) If the adoptive parent fails to comply with the requirements of a redetermination as
described in this rule, the PCSA shall suspend the state adoption subsidy pursuant
to rule 5101:2-44-10 of the Administrative Code or terminate the state adoption
subsidy pursuant to rule 5101:2-44-11 of the Administrative Code.
(I)(K) An adoptive parent receiving a state adoption subsidy shall report any significant
change in the adoptive family's financial situation or the adoptive child's special
needs within thirty days of the change to the PCSA that approved the state adoption
subsidy.
Effective: 08/13/2009
IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY
Name:
Case Number:
Address:
Public Children Services Agency:
City:
State, Zip Code:
Mailing Date:
Action We Are Taking In Your Case
Beginning September 1, 2009, your monthly subsidy payment will be reduced from $_______to $_________.
Reason For This Change
The funding provided for the Ohio Department of Job & Family Services in the recent state budget will allow the department to reimburse us only a maximum of $240 per month per case, rather than $300. Because we do not have sufficient local funding to make up the difference, we are forced to reduce the amount we pay you by terminating any amounts in excess of $240.
Applicable Law
This action is based on the state budget bill (Section 309.10, Amended Substitute House Bill Number 1, 128th General Assembly) and Rules 5101:2-44-03, 2-44-06, 2-44-08 of the Ohio Administrative Code.
Questions?
If you do not understand this notice or have questions about it, you may call: __________________________
Name Telephone
Your Right To A State Hearing
If you believe that this change of law has been incorrectly applied to your case, you have the right to a state hearing. A state hearing lets you or your representative (lawyer, friend, relative) give your reasons for your belief. We will also attend the hearing to present our reasons for taking this action. A hearing officer from the Ohio Department of Job & Family Services will decide whether you or we are right.
If you win the hearing the action may not be taken, or if it already has been taken your subsidy could be restored. If you lose your hearing, you may have to pay back any subsidy amount that you were not eligible for while the hearing was pending.
If you want a state hearing, your hearing request must be received by ________________, 2009.
If you want your current subsidy to continue until the hearing, your hearing request must be received by _________________, 2009
If you do not want a state hearing, then do not return this form.
If you need legal assistance, you can contact your local bar association. If you want information on free legal services, you can contact your local legal aid office or call the Ohio State Legal Services Association toll free at 1-800-589-5888. You can also contact the Ohio Legal Rights Service toll free at 1-800-282-9181, whose goal is “to protect and advocate the rights of mentally ill persons, mentally retarded persons, developmentally disabled persons, and other disabled persons.”
I want a hearing because I think the change of law has been incorrectly applied to my case:
[ ]
Your signature Date Telephone E-mail
I also appoint this person as my authorized representative to help me with my state hearing:
[ ]
Name Address Telephone E-mail
If you want a state hearing, you must mail this form to the following:
Ohio Department of Job & Family Services
Bureau of State Hearing
P.O. Box 182825
Columbus, OH 43218-2825
Alternatively, you can make an oral hearing request with us.
