Tuesday, October 27, 2009

ODJFS Legal Services Chief Fails to Answer Inquiry About the State's Legal Obligation to Enforce Adminstration Hearing Decisions

Note: Please keep me informed about current negotiations for Title IV-E adoption assistance and the outcomes of state administrative hearing decisions involving the negotiation of Title IV-E adoption assistance agreements.

On October 1, 2009, I e-mailed, Lewis George, Chief Legal Counsel for the Ohio Department of Job and Family Services (ODJFS) asking him two basic and related policy questions:

1. Did ODJFS have a legal responsibility to enforce state administrative hearing decisions?

2. Assuming that ODJFS, as the designated state IV-E agency, had such a responsibility, what steps would it take if a county agency did not comply with a lawful hearing decision and order.

As you can readily see in the exchange of e-mails, Mr. George did not really answer the policy questions, even after I presented reasons why I believed that ODJFS not only had an obligation to enforce state administrative hearing decisions, but placed the state’s federal IV-E funding at risk if it failed to do so.

Mr. George, after suggesting that he could not answer my questions because each case “had a different fact pattern," offered to work with my in resolving noncompliance by county agencies if I obtained the permission of the appellate adoptive parents. I thanked him and accepted his offer, but also insisted that that the hearing process itself was designed to resolve substantive disagreements in individual cases. My questions, on the other hand, involved basic and answerable policy matters that are essential to the well being of special needs adoptive children.
To this date, I have received no further response from Mr. George on pending individual cases or the broader policy questions.

E-Mail to Mr. Lewis George, October 1, 2009

I am writing to pose a series of questions. Is ODJFS legally responsible for enforcing state administrative hearing decisions and administrative review decisions involving the negotiation of adoption assistance agreements? If so, what actions must be taken if a county does not comply within stated timelines or refuses to comply at all? I assume that ODJFS has a number of options, including contact with County Commissioners and ultimately the withholding of federal funds. Is that your understanding?

Please respond to my questions in a timely fashion. They have important consequences for special needs adopted children and for the integrity of the federal IV-E adoption assistance program. The longer that negotiation of adoption assistance requirements are ignored and not enforced, the faster the program will reach a crisis point.

You have perhaps seen my arguments. Here they are again. As you know, when adoptive parents appeal a decision regarding the negotiation of an amount of adoption assistance and prevail, the hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child needs and family circumstances as prescribed in state and federal law. Most hearing orders contain a time frame for compliance.

For example, in the Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), the reviewing officer found against Clinton County and ordered the agency to negotiate with the adoptive parents. In issuing the order, which was signed by the Head of ODJFS Office of Legal Services, the reviewing officer noted:

The agency is the one with the expertise to make this initial judgment, but it is clear that its judgment has been clouded by extraneous factors because the subsidy figures in the record thus far defy explanation. For example, the agency paid your previous adoptive family $600 per month, but then reduced its initial offer to you to $450, then reduced it further to $300 when it appeared that no agreement was forthcoming. While we agree with the hearing officer in principle that the previous payment of $600 does not necessarily set either the floor or ceiling in your case, at the very least the agency has some obligation to explain a halving of this amount in your current household. Further, if its offer of $450 was justified at an early stage of your negotiations, how have your needs and circumstances now changed to merit a reduction of that amount by another one-third? For these reasons, we agree with the Statement of Error based on misapplication of rule.

To this date, October 1, 2009, no negotiations have taken place. In Delaware County, no negotiations have taken place following two hearings, the first which took place in 2006.

At least one parent has been told that there is nothing ODJFS can do to enforce hearing decisions when the county refuses to comply. I cannot see how this can be the case for the following reasons.

1. The Code of Federal Regulations at 45 CFR 205.10 guarantees applicants and recipients of Title IV-E adoption assistance due process rights. There is no due process when counties are free to ignore adverse hearing decisions.

2. Federal laws pertaining to the obligations of states under IV-E state plan requirements indicate that the IV-E agency (ODJFS) has full responsibility for oversight and consistent administration of the adoption assistance program.

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;

Surely, enforcement of hearing decisions is included in the above oversight requirements.

Finally, counties that refuse to comply with hearing decisions are violating Ohio law. 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.”

Tim O'Hanlon

Response from Lewis George to: What Are The Obligations Of ODJFS To Enforce State Administrative Hearing Decisions Regarding The Negotiation Of Adoption Assistance Agreement? October 6, 2009

Mr. O'Hanlon:

I have received and read your email dated October 1, 2009, and as we discussed, when we met in person, I appreciate your passionate views regarding this subject. My opinion continues to be that these cases are best resolved on a case by case basis. As you are aware, each case is
different based on the fact pattern.

The Ohio Department of Job and Family Services will be happy to discuss and answer any questions you may have regarding specific cases pending state hearings based on receipt of the federal IV-E adoption assistance program. However, you would need to provide evidence of your authorization to represent the families in those specific cases prior to any information being shared or discussed. Again, I encourage you to provide specific case information so that we may all work together to resolve any issues.


Lewis George, Chief Legal Counsel

Tim O’Hanlon 's Response to Mr. George, October 6, 2009

Dear Mr. George,

Thank you for your offer. I think I will take you up on it. You should be hearing from at least two adoptive parents soon.

I do think, however, that there is a clear difference between the merits of individual cases and the important policy questions:

1. Does ODJFS have a legal responsibility to enforce state administrative hearing decisions, administrative review decisions, which have been decided on the merits, if the county agency does not comply? I believe that the obvious answer is yes.

As the state's IV-E agency, ODJFS should be able to define its responsibility to enforce state administrative hearing decisions involving Title IV-E adoption assistance. The hearing and administrative appeal decisions decide the merits of the appeal. The question of ODJFS' obligations to ensure adequate due process is a general policy issue which sets the context for the resolution of individual appeals.

2. The next question is a bit more complicated, but still capable of an answer. What steps may and will ODJFS take to enforce hearing and administrative review decisions in cases of county non-compliance. At heart, this question asks, what will ODJFS do to ensure the due process assured adoptive parents in federal law?

If these questions are not addressed, a number of county agencies will feel free to completely ignore hearing decisions and orders, especially ones involving the negotiation of adoption assistance agreements. As non-compliance increases, the integrity of the program is diminished and ODJFS places its access to IV-E funding at risk.

Tim O.