Thursday, September 17, 2009

Will the Ohio Department of Job and Family Services Enforce State Adminstrative Hearing Decisions Against Counties?

I ask parents and advocates to e-mail officials at the Ohio Department of Job and Family Services (ODJFS) and ask them what actions they will take to enforce hearing decisions when the county agency refuses to comply. See the suggested language below. One county described below is openly defying an Administrative Review Order by the ODJFS Legal Services Director to re-0pen IV-E adoption assistance negotiations with an adoptive family. A parent in another county reported that the agency has thus far refused to comply with two sets of hearing orders, the first dating back to 2006.

The Problem

In previous posts, I have expressed concern about the following:

1. Ohio County agencies refusing to negotiate Title IV-E adoption assistance agreements over $240 per month in light of budget cuts in the state financial participation rate which went into effect on September 1, 2009. In previous posts, I have argued that counties taking this position are in violation of federal and state laws.

2. Although the appeals of adoptive parents in opposition to such county policies have been and will continue to be successful, will the Ohio Department of Job and Family Services (ODJFS) enforce hearing decisions which order counties to continue negotiations until a fair and adequate agreement for adoption assistance is reached.

3. As county agencies step up resistance to the lawful negotiation of adoption assistance agreements, there will be a concomitant growth in the defiance of hearing orders.

4. To this point, there is no evidence that ODJFS has taken any action to enforce hearing decisions against non-compliant county agencies. Worse still, there is some evidence that ODJFS has no intention of taking enforcement action and maintains the position that it lacks the authority to enforce state adminstrative hearing decisions. I believe that this view would come as surprising news to federal officials at the Adminstration for Children and Families.

Clinton County's Refusal to Comply

I received an e-mail from a adoptive parent reporting that after several months, Clinton County has refused to enter into Title IV-E adoption assistance negotiations. The county is defying both state administrative hearing decisions and an administrative appeal signed by the head of the Office of Legal Services at ODJFS.

Citing Section 8.2D.4 of the federal Child Welfare Manual the ODJFS legal services reviewers wrote.

"Although it may be tempting in these trying financial times to also take into account the agency’s other financial circumstances, that factor is not part of the rule other than the overall ceiling of the maximum foster care payment limit. In fact, the federal agency overseeing the program has opined that '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.' "That agency has also opined as follows:

'Title IV-E adoption assistance is not based upon a standard schedule of itemized
needs and countable income. 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.'" (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE).

The administrative reviewers issued an "order of compliance" to schedule another negotiation and "absent any agreement with you on a subsidy amount retroactive to your application, issue written notification to you setting forth in detail the manner in which its subsidy offer satisfies your needs and your family’s circumstances."

The agency has refused to take any action in spite of contact from the Bureau of State Hearings at ODJFS. The adoptive parent wrote she was informed by Bureau of State Hearing Staff that there was nothing ODJFS could do to enforce its hearing decisions.

I have registered my strong disagreement with this position in previous posts.

The Responsibility of ODJFS to Enforce 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 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.

The Code of Federal Regulations at 45 CFR 205.10 guarantees due process appeal rights to adoptive parents. The right to a hearing is meaningless if county agencies are free to defy hearing orders without fear of consequences.

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.

Please Write ODJFS and Other Officials

Please pose the following issue. Clinton County is openly in defiance of an Administrative Review Order issued by the ODJFS Office of Legal Services on June 23, 2009. (Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The appellant parent has been told that there is noting ODJFS can do about it. The refusal to enforce administrative hearing decisions makes a mockery of the due process rights guaranteed under Code of Federal Regulations 45 CFR 205.10. It violates ODJFS' own state administrative hearing rules and the IV-E State Plan responsibilities provided in federal law at 42 U.S.C. 671. Federal IV-E funding is contingent on the performance of these responsibilities.

As adoptive parents of special needs children we have the right to ask and receive a clear response to the question of what specific actions ODJFS will take to enforce state administrative hearing orders against non-compliant county agencies. Our children's well being is at stake and we deserve a prompt response.


Sandra Holt, Deputy Director ODJFS Child and Family Services,,
Charles Preston, Governor's Office,,
Lewis George, Director, Office of Legal Services,,
Bob Frankart, Senior Attorney, Office of Legal Services,,
Donna Vargo, Head, ODJFS, Bureau of State Hearings,,
Armond Budish, Ohio House Majority Leader <>,
Wiiliam Batchelder, Ohio House Minority Leader <>,
Ted Celeste, Ohio House Representative <>
Josh Kroll, North American Council on Adoptable Children Subsidy Specialist,