Douglas E. Lumpkin, Director of the Ohio Department of Job and Family Services (ODJFS) has written a procedure letter stating that Ohio County Agencies may not make automatic or across the board cuts in existing Title IV-E adoption assistance payments. The letter is being sent to all Ohio County Agencies and appears below.
The ODJFS announcement is good news for those advocates and parents across the state that have been taken the position that Title IV-E adoption assistance agreements are contracts and may not be amended without the consent of the adoptive family that is a party to the contract. Anyone that receives a notice lowering a current adoption assistance payment should show the ODJFS letter to their case worker and if the matter isn't resolved right away, request a state administrative hearing. Information on requesting a hearing appears on previous blogs.
Having addressed one major issue, we must now focus on county agency's willingness to negotiate Title IV-E adoption assistance agreements from this point forward. See the previous blog of August 26, 2009 entitled "Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t."
Adoptive parents will win hearings in which county agencies refuse to negotiate. The problem then is what actions will the Ohio Department of Job and Family Services take to enforce the hearing decisions. Compliance with hearing decisions is required by Ohio law.
Here is the text of the ODJFS letter. NOTE: The letter cites Section 8.2D.4 of the federal Child Welfare Policy Manual as source of authority. We have been arguing for years that the state and counties are obliged to adopt policies that are compatible with the Child Welfare Policy Manual and that the Manual clarifies and sometimes corrects existing Ohio regulations. It appears that this view is gaining acceptance at ODJFS.
Family, Children and Adult Services Manual Procedure Letter No.
TO: Family, Children and Adult Services Manual Holders
FROM: Douglas E. Lumpkin, Director
SUBJECT: Modification of the JFS 01453 "Adoption Assistance Agreement"
It has come to our attention that the prescribed JFS 01453 "Adoption Assistance Agreement" may have been modified by one or more public children services agencies recently. While we do not know whether any agency has attempted to use a county-modified form, we are sending this communication to ensure that all agencies discontinue any attempts at modifying this ODJFS-prescribed form.
Revised Code Section 5101.141(B) specifies that ODJFS adopt rules to implement its authority as the single state agency to administer federal payments for Title IV-E adoption assistance. “A public children services agency to which the department distributes Title IV-E funds shall administer the funds in accordance with those rules.”
OAC Chapter 5101:2-49, the rule chapter that ODJFS adopted to implement the Title IV-E adoption assistance program, requires the specific use of the JFS 01453. This ODJFS-prescribed form can be found at http://www.odjfs.state.oh.us/forms/results1.asp. Pursuant to 5101:2-49-06 paragraph (A) the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006) must be signed by both the adoptive parent(s) and the public children services agency (PCSA) for each child receiving Title IV-E adoption assistance (AA) payments. This is a prescribed form for receiving Adoption Assistance payments.
ODJFS has been made aware that one or more PCSAs may be modifying the JFS 01453 by adding a provision that the adoption assistance payments are “subject to the availability of federal and state funds. Any reduction in federal or state financial participation will automatically reduce the adoption assistance payment in an equal amount." In addition, the modified form may require that the adoptive parent check-off that the parent agrees “that any reduction in federal or state funds will automatically reduce this amount in an equal manner.”
Additionally, a modification to the JFS 01453 is a violation of OAC rule 5101:2-49-06. The U.S. Department of Health and Human Services has indicated in its Child Welfare Policy Manual that any such statements in an adoption assistance agreement violates sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. See http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=12
As required by federal law, any modification/amendment of the Title IV-E AA payment amount must be made with the concurrence of the adopting parents(s) based on changes in circumstances of the adopting parents and needs of the child. When the parties agree to 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. Office of Family and Children, Bureau of Child Welfare Monitoring, Child Protection Oversight and Evaluation (CPOE) section will be monitoring a sample of signed Agreements to ensure that the prescribed JFS 01453 is being used and has not been modified. Please feel free to contact Darlene Dalton, Acting Section Chief at 614-752-0656 if you have any questions.