Wednesday, August 26, 2009

Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t

Effective September 1, 2009, state participation in the federal Title IV-E adoption assistance program will be limited to monthly adoption assistance payments of $240 or less. Prior to the cut, the state provided the non federal portion of payments up to $300 per month. Since April, 2009, the federal financial participation rate has been around 68.34 %, the state’s now down to about 31.66%. The state’s non federal contribution to an adoption assistance payment of $240 per month would be around $76. Counties will be responsible for the non federal portion (31.7%) of adoption assistance payments over $240 per month instead of payments over $300 per month as was the case until the budget cuts.

Negotiating Title IV-E Adoption Assistance Agreements After September 1, 2009

There are two things you should know regarding the negotiation of new adoption assistance agreements after September 1, 2009.

1. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect.

2. Given the rise in the federal share of adoption assistance payments since April 2009, the state budget cuts by themselves do not place as much of a burden on county agencies as it may first appear.

County agencies must negotiate adoption assistance agreements. They may not present adoptive parents with the proposition of “$240 per month, take it or leave it.” The Ohio Administrative Code rule 5101:2-49-05 continues to require that adoption assistance agreements must be negotiated based upon a consideration of the needs of the child and circumstances of the family. The Ohio rule is based directly on federal law at 42 U.S.C. 673 and amplified by Section 8.2D.4 of the federal Child Welfare Policy Manual.

The ODJFS Legal Services staff cited the federal Child Welfare Policy Manual on three separate occasions in an Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). In finding against the count and ordering the agency to negotiate with the adoptive parents, the decision quoted at length from Section 8.2D.4 of the federal manual. “Title IV-E adoption assistance,” it read, “is not based upon a standard schedule of itemized needs and countable income.”

The quote continues:

"Instead, the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. 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.
The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment."

The Administrative Appeal Decision was signed by the Head of the ODJFS Office of Legal Services as well as the reviewer.

The County Agency’s Financial Burden for Adoption Assistance

With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were when the state provided the non-federal portion of adoption assistance up to payments of $300 per month.

Throughout most the history of the Title IV-E adoption assistance program in Ohio, the federal participation rate was approximately 60% and the non federal participation rate around 40%. Until recently, an adoption assistance payment of $600 per month would have broken down as follows

Previous participation rates

Federal State County

$360 (60%) $120 (40% of $300) $120 (40% over $300)

Under the higher federal participation rates in effect since April, 2009, an adoption assistance payment of $600 would look like the following:

New participation rates (April 2009)

Federal State County

$398 (68.34% of $600) $76 (31.66% of $240) $121 (31.66% of $360)

A negotiated payment of $1,000 per month would break down as follows

Federal State County

$683 (68.34% of $1,000) $76 (31.66% of $240) $241 (31.66% of $760)

In the recent past, at a 40% participation rate, a $1,000 negotiated $1,000 adoption assistance payment would have cost the county agency around $300 per month.


Adoptive parents should insist on negotiating adoption assistance payments based upon the needs of the child and circumstances of the family as described in Section 8.2D.4 of the federal Child Welfare Policy Manual, cited in the Ohio Administrative Appeal decision of May 14, 2009. Contact an advocate for assistance. You can contact me Tim O’Hanlon at
If the agency refuses to negotiate in accordance with state and federal law, ask for a written denial notice, which will contain information on how to request a state administrative hearing.

If the agency takes no action, you can request a hearing on grounds of failure to act with “reasonable promptness.” To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official that your attempts the agency refuses to engage you in negotiation and/or to issue a formal denial notice. Alternatively, you may fax a request for a hearing to 614728-9574. Include your reasons with your request.