NOTE: If you receive a notification that your Title IV-E adoption assistance payment is being automatically reduced, please let me know and e-mail me a copy of the notice or mail a copy to Tim O’Hanlon, 1371 Virginia Ave. Columbus, OH 43212.
Neither the Ohio Department of Job and Family Services (ODJFS), nor individual counties may make across the board cuts in existing Title IV-E adoption assistance payments. Here are some reasons why automatic cuts are not legally permissible.
Ohio Regulations at OAC 5101:2-49-12
Ohio rules in conformance with federal law emphasize that adoption assistance agreements must be modified or amended by mutual consent. Paragraph (A) states in pertinent part:
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. (emphasis added)
Paragraph (B) of OAC 5101:2-49-12 provides in pertinent part:
"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. (Emphasis added).
Federal Law
The federal Child Welfare Policy Manual is the vehicle though which the federal Administration for Children and Families’, Children’s Bureau interprets federal adoption assistance law. The Children’s Bureau web site makes this very point on the page entitled “Laws and Policies.” The Child Welfare Policy Manual, it states,
"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 Child Welfare Policy Manual clarifies and explains Ohio rules. 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).
Federal Court’s Rule that Adoption Assistance Agreements are Contracts
On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.
Finally, in responding to an inquiry about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”
Recommendations
If an adoptive parent with an existing adoption assistance agreement receives a notice from a county or state agency proposing to reduce the child’s adoption assistance payment, they should immediately appeal by contacting the Bureau of State Hearings at ODJFS and requesting a hearing because the agency has proposed to reduce the adoption assistance benefit without grounds. After you have requested a hearing, e-mail the agency a copy of the above arguments informing them why it cannot unilaterally reduce your child’s adoption assistance. Please then inform Tim O’Hanlon at tpohanlon@gmail.com and include your phone number. To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official about the letter you received from the agency. Alternatively, you may fax a request for a hearing to 614728-9574. State your reasons, include the agency notification about a reduction in assistance.
