Tuesday, August 4, 2009

Ohio County Agencies Planning Automatic or Across the Board Cuts in Adoption Assistance in September 2009?

Note for parents: At this point, we don't know if county agencies are going to attempt to reduce adoption assistance payments. We believe that the law is clearly on your side. Share this blog and the preceding blog with other parents, parents support groups and state legislators. If you receive a communication announcing a reduction in your Title IV-E adoption assistance payments, contact the Bureau of State Hearings immediately and request a hearing; please also contact me and other parents.

An adoptive parent with an existing adoption assistance agreement phoned and informed me that Montgomery County was planning to reduce her Title IV-E adoption assistance payments in September of 2009. In an earlier paper, I argued that neither the state, nor county could make automatic cuts in adoption assistance agreements unless there were across the board cuts in foster care payments. Even then, the only adoption assistance payments that might be affected were those that exceeded the appropriate foster home rate for the child. In effect this means that an adoption assistance payment cannot be cut beyond the amount it exceeds the foster care payment.

Three points must be considered before the state or any individual county attempts any rash actions to make across the board or automatic cuts in adoption assistance.

1. The federal Administration for Children and Families and federal courts in recent Missouri and Oregon have determined that adoption assistance agreements are individual contracts.

2. Adoptive parents have full due process rights under federal regulations at 45 CFR 205.10 that preclude any automatic reduction of benefits. A request for a hearing freezes any attempted reduction in place until due process takes its course. Any attempt to make automatic or across the board cuts in adoption assistance will be greeted with hundreds, perhaps thousands of state administrative hearings.

3. Federal policy stipulates that budget problems are not sufficient grounds for automatic reductions of adoption assistance payments.

4. Federal and state laws both stipulate that existing agreements cannot be modified with the consent of the parents.

Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.

1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for Federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?

Answer: No. Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence. (Emphasis added).

OAC 5101:2-49-12 (Ohio Rule)

A) Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. The modified/amended agreement shall specify the duration of the agreement and shall meet all other requirements of rule 5101:2-49-03 of the Administrative Code.

(B) At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. A copy shall be given to the adoptive parent(s) and a copy shall be retained by the PCSA. The modified/amended agreement shall meet all requirements of rule 5101:2-49-10 of the Administrative Code.

(C) In cases where the PCSA and the adoptive parent(s) cannot agree on the amount of AA that should be provided, they may complete a JFS 01453 for a mutually acceptable level of AA payment while negotiations continue or the adoptive parent(s) request a state hearing. (Emphasis added).

Attempts to make across the board reductions in adoption assistance would not only generate hundreds of hearings, but the provisions in federal and state law assure that the appellants would prevail. Any attempt by the state to deny due process is a violation of the IV-E State Plan. A class action law suit would soon follow. Does the state and/or Ohio counties want to completely destroy the little good will that is left in the special needs adoption program?