Thursday, September 3, 2009

ODJFS Must Require County Agencies to Negotiate Title IV-E Adoption Assistance Agreements in Accordance with Federal and State Laws and Enforce State

The next challenge facing adoptive families and advocates across Ohio can be captured in the following scenario. There are already indications that county agencies are determined not to negotiate IV-E adoption assistance agreements and to insist that Adoptive parents settle for adoption assistance payments of no more than $240 per month, even in cases where they have been foster parents of a child with a specialized level of care receiving monthly foster care support of more than $1,000.

An even bigger concern is whether the Ohio Department of Job and Family Services (ODJFS) will enforce state administrative decisions in which adoptive parents successfully appeal. One ODJFS official confided to us that there was nothing that could be done when a county defied a hearing order, which is hardly the case.

Please inform me and copy the following officials at the end of this message if the any of events depicted in the scenario happen to you. I am collecting documentation so please-mail hearing decisions, e-mail messages, letters or summaries of agency officials’ statements to you. I will help with the preparation of negotiation sessions and hearings.

Scenario of County and/or ODJFS Non-Compliance

1. The county agency refuses to negotiate (that is go beyond $240 per month for IV-E adoption assistance, which is contrary to federal and state law; and/or

2. The agency talks with the parents, but does not actually negotiate. The agency refuses to recognize any expense, condition, situation, service put forth by the parent as legitimate in determining adoption assistance. The agency’s arbitrary position has no basis in federal or state law. This behavior too is against federal and state law which requires negotiations to consider ordinary as well as special needs, anticipated as well as current needs and overall family circumstances defined as incorporation of the child into a permanent family. It results in the agency's insitence on adoption assistance payments hundreds of dollars lower than the child's foster care rate.

3. The parents appeal and their appeal is sustained (upheld). The hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed by the county agency is is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child's needs and family circumstances as prescribed in state and federal law.

4. The agency stalls, demands irrelevant information or in some cases simply refuses to comply. It has no fear of ODJFS.

5. Such refusal is in direct defiance of state hearing laws. Also, adoptive parents are guaranteed due process rights in the Code of Federal Regulations at 45 CFR 205.10. Federal law addressing states' IV-E plan requirements obligates ODJFS to administer the IV-E program across political subdivisions and to exercise oversight.

County Non-Compliance in Negotiating Title IV-E Adoption Assistance Agreements

County agencies that refuse to negotiate will usually lose state administrative hearings following appeals brought by adoptive families. When the adoptive family’s appeal is sustained the hearing decision typically order the county to resume negotiations. The order is issued with the clear understanding that the agency will negotiate an adoption assistance agreement based on a consideration of the needs of the child and circumstances of the family as set forth in Ohio rule 5101:2-49-05 and amplified in Section 8.2D.4 of the federal Child Welfare Policy Manual.

Although hearing officers are reluctant to set rates, an order to renegotiate, clearly indicates a determination that the amount proposed by the county agency is insufficient. If it were not, there would be no need for further negotiation. Until recently, an order to renegotiate usually led to an agreement for an amount of adoption assistance that more closely reflected the child’s needs and family circumstances.

Now, faced with tight budgets, we have seen some instances of county agencies, not only refusing to negotiate adoption assistance agreements in accordance with federal and state laws, but continuing to drag their feet and to resist good faith negotiations in response to state administrative hearing orders. While such practices may not constitute a large scale trend as yet, they must be stopped before the majority county agency directors assume that they can get away with anything without consequence.

ODJFS Non-Compliance with Enforcement of State Administrative Hearing Decisions

Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.” Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.”

When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis for its position in fact or in law, it is clearly defying Ohio law. As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.

Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—

(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;

(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;

(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;

(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;

(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;

It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders. ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties.

Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.

Criteria and Procedures for the Negotiation of IV-E Adoption Assistance Agreements Have Not Changed

Laws governing negotiations of Title IV-E adoption assistance agreements remain the same in the wake of recent budget changes. As we have noted previously, the financial burden on the county agencies resulting from the reduction in the state’s financial participation in federal adoption assistance payments is not as severe as it might appear at first glance. The federal financial participation rate has been 68.34% since April, leaving the counties financial share at 31.66% of any adoption assistance payment over $240 on or after September 1, 2009.

In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’ legal services staff, cited the federal Child Welfare Policy Manual on three separate occasions. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The most striking quote was taken from Section 8.2D.4 of the Child Welfare Policy Manual with addresses the negotiation of adoption assistance agreements. The first sentence reads as follows: “Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income.”

Some Ohio counties insist on adding up an “itemized” list of expenses that the agency deems acceptable. The quotation in the recent Administrative Appeal decision 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.


Please contact:

Lewis George, Head of the ODJFS Office Legal Services at ,

Robert Frankart, Senior Attorney ODJFS Office of Legal Services at ,

Donna Vargo, Head of the Bureau of State Hearings at ,

Sandra Holt, Deputy Director of the ODJFS Office of Children and Family Services at .

Also, Armond Budish, Speaker of the Ohio House at

Ted Celeste, Representative, Ohio House, Columbus/Grandview area at

William G. Batchelder, Minority Leader Ohio House of Representatives at

Charles Preston, Governor’s Office at

Please express your concern as applicable that:

1. County agencies are not negotiating Title IV-E adoption assistance agreements based on the broad needs of the child and overall circumstances of the family as required by OAC rule 5101:2-49-05 and Section 8.2D.4 of the Child Welfare Policy Manual which clarifies that rule.

2. When hearing decisions order county agencies to renegotiate the adoption assistance agreement, sustaining the adoptive family’s appeal, there is a tacit recognition that the original amount proposed by the agency was an insufficient reflection of the child’s needs and family circumstances. Now, some county agency’s are openly defying hearing orders, which is clearly against state law and a violation of ODJFS’ responsibility under federal laws governing IV-E State Plans at 42 U.S.C. 671. Continuing non-compliance with hearing decisions would appear to place Ohio’s IV-E federal funding at risk.

Add any relevant personal experiences. Mention that everyone in Ohio is experiencing economic hard times, not just agencies and tight budgets are not a valid justification for ignoring federal and state law. Use any portions of the blog that you find useful.

3. Urge/demand that ODJFS:

a. Enforce laws governing the negotiation of adoption assistance agreements uniformly across political subdivisions as required by federal law.

b. Enforce hearing decisions, especial those involving county agencies to renegotiate in good faith with adoptive parents. Mention, that if certain unfair and dubious practices among county agencies continue to grow, that adoptive parents across the state are going to take their case to the federal Administration for Children and Families and to Children’s Rights in New York, which has litigated a number of child welfare cases.