Thursday, December 10, 2009

Unauthorized County Cuts in Funding for State Adoption Subsidies Threaten Support for Adopted Special Needs Children

The Problem

The recent reduction in the state’s financial participation rate cut state support for the state adoption subsidy program from a maximum monthly payment of $300 to a maximum payment of $240 per month. The reductions in state financial participation in the state adoption subsidy program were the direct result of cuts in the state’s biennium budget. It would appear rather obvious that state budget cuts apply to state funds only, not to budgetary decisions in counties or cities. It is equally obvious that state budget cuts and subsequent emergency rule revisions that reduced state financial participation in the state adoption subsidy program had no effect at all on any supplemental funding voluntarily provided by county agencies to increase state adoption subsidy payments. Nonetheless, some hearing officers and administrative reviewers in the Ohio Department of Job and Family Services’ legal section have arrived at a contrary conclusion.

Although there are conflicting interpretations and hearing results, some hearing officers and administrative reviewers have decided that state budget reductions in the state’s financial participation rate, somehow allows county agencies to make immediate, arbitrary cuts in their supplemental county funding for state adoption subsidies. Through the years, county agencies, certain cases, have signed state adoption subsidy agreements in which they committed supplemental county funds in addition to the money provided by the state. For example, when the state’s maximum participation rate was $250 per month, Wood County signed JFS 01615 state subsidy agreements with separate adoptive families for calling for payments of $350 and $500.per month. Each dollar over the state’s $250 maximum was to be provided by county funds. Cuyahoga, Franklin and a number of other counties also committed supplemental county funds to state adoption subsidies in certain situations where higher levels of support were warranted by the child’s needs and family circumstances. This practice was never challenged. The state adoption subsidy rules in OAC Chapter 5101:2-44 neither require nor prevent county agencies from adding their own funds to state adoption subsidy payments.

Wood County and other agencies now want to use cuts in the state financial participation rates to unilaterally terminate all county support for individual state adoption subsidies as well. If Wood County has its way, children receiving $350 or $500 per month would see their state adoption subsidies reduced to $240, the state’s maximum financial participation rate. In fact, no child in Wood County would receive a state adoption subsidy of more than $240 per month, no matter how many years the county had committed itself to higher payments at the annual subsidy redeterminations, no matter what the child’s level of care or the circumstances of the adoptive family. Incredibly, although none of the changes in the state adoption subsidy program justify such automatic cuts, some state hearing officers and administrative reviewers approve of them.

Why they are wrong: Background

In the recent state biennium budget, the state’s participation rate in the state adoption maintenance subsidy was cut from a maximum of $300 to a maximum of $240 per month. As a result of Executive Order 2009-15S signed by Governor Strickland, emergency revisions were made to adoption subsidy rules 5101:2-44-06 and 5101:2-44-08 in order to put the cuts immediately into effect. The reductions in the state’s participation rate were across the board cuts and included existing as well as future state adoption subsidy agreements (JFS 01615).
The rules changes are now permanent.

Why they are wrong: The recent budget cuts and subsequent rule changes pertained solely to state funding and state financial participation in the state adoption subsidy program

In addition to the blatantly obvious points that the state budget is exclusively concerned with state funding and the adoption subsidy rules focus eclusively on state financial participation limits, there are no rules or ODJFS communications that authorize county agencies to drop their existing support for state adoption subsidies. County agencies and adoptive parents both received the following message in ODJFS communication, entitled, “Important Notice About Your State Adoption Maintenance Subsidy.” It read in pertinent part

"The funding provided for the Ohio Department of Job & Family Services in the recent state budget will allow the department to reimburse us only a maximum of $240 per month per case, rather than $300. Because we do not have sufficient local funding to make up the difference, we are forced to reduce the amount we pay you by terminating any amounts in excess of $240."

ODJFS was obviously referring to reductions in state funding only.

Revised rule OAC 5101:2-44-08 (K), also refers exclusively to state funds.

"When the Ohio department of job and family services (ODJFS) determines that state funds are not available to maintain SAMS program at the current maximum monthly funding level and notifies the PCSA of the unavailability of state funds, the PCSA shall notify any adoptive parent receiving a monthly subsidy that is greater than two hundred forty dollars per child in accordance with rule 5101:6-2-06 of the Administrative Code."

There is no mention of county funds in the revised rules, much less language which authorizes county agencies to immediately terminate their support for existing state adoption subsidies.

Why they are wrong: the revisions to OAC 5101:2-44-06 and 5101:2-44-08 did not change the longstanding procedures for annual redeterminations of state adoption subsidies or for amending state adoption subsidy agreements.

As noted above, state adoption subsidy regulations at OAC 5101:2-44-08 still require an annual redetermination of eligibility. In the case of the Wood County families mentioned above, the agreement for state subsidies of $350 and $500 per month were each initiated in 2002 and each renewed through 2008. For most of that period, until January 2008, the state’s maximum financial participation rate was $250 per month, which meant that Wood County voluntarily committed county agencies funding levels of $150 and $250 per month in a series of signed JFS 01615 subsidy agreements.

The JFS 01615 state subsidy agreement form is structured as a contract. The adoptive parents are expected to meet responsibilities outlined in Section III of the JFS 01615 form. The County in turn, is obliged to comply with provisions regarding the subsidy payment.

OAC 5101:2-44-06 (E) specifies that the amount of the state adoption subsidy should be based upon the needs of the child and circumstances of the family. In accordance with well established procedures in OAC Chapter 5101:2-44, if the a county agency proposes a reduction, it is required to provide formal written notification to the adoptive family, who would then be guaranteed the right to a state administrative hearing. At the hearing, the primary burden would be on the county agency to show that a reduction in its financial participation was warranted by changes in the child’s needs and family circumstances. There are no provisions in the revised rules for a state adoption subsidy to be summarily reduced aside from the cuts in the state’s maximum financial participation from $300 to $240 per month.