NOTE: If you receive a notification that your Title IV-E adoption assistance payment is being automatically reduced, please let me know and e-mail me a copy of the notice or mail a copy to Tim O’Hanlon, 1371 Virginia Ave. Columbus, OH 43212.
Neither the Ohio Department of Job and Family Services (ODJFS), nor individual counties may make across the board cuts in existing Title IV-E adoption assistance payments. Here are some reasons why automatic cuts are not legally permissible.
Ohio Regulations at OAC 5101:2-49-12
Ohio rules in conformance with federal law emphasize that adoption assistance agreements must be modified or amended by mutual consent. Paragraph (A) states in pertinent part:
Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. (emphasis added)
Paragraph (B) of OAC 5101:2-49-12 provides in pertinent part:
"At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon 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. (Emphasis added).
Federal Law
The federal Child Welfare Policy Manual is the vehicle though which the federal Administration for Children and Families’, Children’s Bureau interprets federal adoption assistance law. The Children’s Bureau web site makes this very point on the page entitled “Laws and Policies.” The Child Welfare Policy Manual, it states,
"conveys mandatory policies that have their basis in Federal law and/or program regulations. It also provides interpretations of Federal statutes and program regulations initiated by inquiries from State Child Welfare agencies or ACF Regional Offices."
The Child Welfare Policy Manual clarifies and explains Ohio rules. Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.
1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?
Answer: "No. 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 in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence." (Emphasis added).
Federal Court’s Rule that Adoption Assistance Agreements are Contracts
On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.
Finally, in responding to an inquiry about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”
Recommendations
If an adoptive parent with an existing adoption assistance agreement receives a notice from a county or state agency proposing to reduce the child’s adoption assistance payment, they should immediately appeal by contacting the Bureau of State Hearings at ODJFS and requesting a hearing because the agency has proposed to reduce the adoption assistance benefit without grounds. After you have requested a hearing, e-mail the agency a copy of the above arguments informing them why it cannot unilaterally reduce your child’s adoption assistance. Please then inform Tim O’Hanlon at tpohanlon@gmail.com and include your phone number. To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official about the letter you received from the agency. Alternatively, you may fax a request for a hearing to 614728-9574. State your reasons, include the agency notification about a reduction in assistance.
Wednesday, August 26, 2009
Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t
Effective September 1, 2009, state participation in the federal Title IV-E adoption assistance program will be limited to monthly adoption assistance payments of $240 or less. Prior to the cut, the state provided the non federal portion of payments up to $300 per month. Since April, 2009, the federal financial participation rate has been around 68.34 %, the state’s now down to about 31.66%. The state’s non federal contribution to an adoption assistance payment of $240 per month would be around $76. Counties will be responsible for the non federal portion (31.7%) of adoption assistance payments over $240 per month instead of payments over $300 per month as was the case until the budget cuts.
Negotiating Title IV-E Adoption Assistance Agreements After September 1, 2009
There are two things you should know regarding the negotiation of new adoption assistance agreements after September 1, 2009.
1. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect.
2. Given the rise in the federal share of adoption assistance payments since April 2009, the state budget cuts by themselves do not place as much of a burden on county agencies as it may first appear.
County agencies must negotiate adoption assistance agreements. They may not present adoptive parents with the proposition of “$240 per month, take it or leave it.” The Ohio Administrative Code rule 5101:2-49-05 continues to require that adoption assistance agreements must be negotiated based upon a consideration of the needs of the child and circumstances of the family. The Ohio rule is based directly on federal law at 42 U.S.C. 673 and amplified by Section 8.2D.4 of the federal Child Welfare Policy Manual.
The ODJFS Legal Services staff cited the federal Child Welfare Policy Manual on three separate occasions in an Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). In finding against the count and ordering the agency to negotiate with the adoptive parents, the decision quoted at length from Section 8.2D.4 of the federal manual. “Title IV-E adoption assistance,” it read, “is not based upon a standard schedule of itemized needs and countable income.”
The quote 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.
The County Agency’s Financial Burden for Adoption Assistance
With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were when the state provided the non-federal portion of adoption assistance up to payments of $300 per month.
Throughout most the history of the Title IV-E adoption assistance program in Ohio, the federal participation rate was approximately 60% and the non federal participation rate around 40%. Until recently, an adoption assistance payment of $600 per month would have broken down as follows
Previous participation rates
Federal State County
$360 (60%) $120 (40% of $300) $120 (40% over $300)
Under the higher federal participation rates in effect since April, 2009, an adoption assistance payment of $600 would look like the following:
New participation rates (April 2009)
Federal State County
$398 (68.34% of $600) $76 (31.66% of $240) $121 (31.66% of $360)
A negotiated payment of $1,000 per month would break down as follows
Federal State County
$683 (68.34% of $1,000) $76 (31.66% of $240) $241 (31.66% of $760)
In the recent past, at a 40% participation rate, a $1,000 negotiated $1,000 adoption assistance payment would have cost the county agency around $300 per month.
Recommendations
Adoptive parents should insist on negotiating adoption assistance payments based upon the needs of the child and circumstances of the family as described in Section 8.2D.4 of the federal Child Welfare Policy Manual, cited in the Ohio Administrative Appeal decision of May 14, 2009. Contact an advocate for assistance. You can contact me Tim O’Hanlon at tpohanlon@gmail.com
If the agency refuses to negotiate in accordance with state and federal law, ask for a written denial notice, which will contain information on how to request a state administrative hearing.
If the agency takes no action, you can request a hearing on grounds of failure to act with “reasonable promptness.” To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official that your attempts the agency refuses to engage you in negotiation and/or to issue a formal denial notice. Alternatively, you may fax a request for a hearing to 614728-9574. Include your reasons with your request.
Negotiating Title IV-E Adoption Assistance Agreements After September 1, 2009
There are two things you should know regarding the negotiation of new adoption assistance agreements after September 1, 2009.
1. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect.
2. Given the rise in the federal share of adoption assistance payments since April 2009, the state budget cuts by themselves do not place as much of a burden on county agencies as it may first appear.
County agencies must negotiate adoption assistance agreements. They may not present adoptive parents with the proposition of “$240 per month, take it or leave it.” The Ohio Administrative Code rule 5101:2-49-05 continues to require that adoption assistance agreements must be negotiated based upon a consideration of the needs of the child and circumstances of the family. The Ohio rule is based directly on federal law at 42 U.S.C. 673 and amplified by Section 8.2D.4 of the federal Child Welfare Policy Manual.
The ODJFS Legal Services staff cited the federal Child Welfare Policy Manual on three separate occasions in an Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). In finding against the count and ordering the agency to negotiate with the adoptive parents, the decision quoted at length from Section 8.2D.4 of the federal manual. “Title IV-E adoption assistance,” it read, “is not based upon a standard schedule of itemized needs and countable income.”
The quote 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.
The County Agency’s Financial Burden for Adoption Assistance
With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were when the state provided the non-federal portion of adoption assistance up to payments of $300 per month.
Throughout most the history of the Title IV-E adoption assistance program in Ohio, the federal participation rate was approximately 60% and the non federal participation rate around 40%. Until recently, an adoption assistance payment of $600 per month would have broken down as follows
Previous participation rates
Federal State County
$360 (60%) $120 (40% of $300) $120 (40% over $300)
Under the higher federal participation rates in effect since April, 2009, an adoption assistance payment of $600 would look like the following:
New participation rates (April 2009)
Federal State County
$398 (68.34% of $600) $76 (31.66% of $240) $121 (31.66% of $360)
A negotiated payment of $1,000 per month would break down as follows
Federal State County
$683 (68.34% of $1,000) $76 (31.66% of $240) $241 (31.66% of $760)
In the recent past, at a 40% participation rate, a $1,000 negotiated $1,000 adoption assistance payment would have cost the county agency around $300 per month.
Recommendations
Adoptive parents should insist on negotiating adoption assistance payments based upon the needs of the child and circumstances of the family as described in Section 8.2D.4 of the federal Child Welfare Policy Manual, cited in the Ohio Administrative Appeal decision of May 14, 2009. Contact an advocate for assistance. You can contact me Tim O’Hanlon at tpohanlon@gmail.com
If the agency refuses to negotiate in accordance with state and federal law, ask for a written denial notice, which will contain information on how to request a state administrative hearing.
If the agency takes no action, you can request a hearing on grounds of failure to act with “reasonable promptness.” To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official that your attempts the agency refuses to engage you in negotiation and/or to issue a formal denial notice. Alternatively, you may fax a request for a hearing to 614728-9574. Include your reasons with your request.
Saturday, August 15, 2009
New SAMS Rules: Families with State Adoption Maintenance Subsidies Over $300 Per Month Should Consider Appeal
Governor Strickland signed an Executive Order-15S: Immediate Amendment of Rules Regarding the Payment of Certain Adoption Expenses on Monday, Aug. 10, 2009, paving the way for emergency rules implementing budget cuts in the state adoption maintenance subsidy (SAMS) program. The reduction in payments to $240 per month will take effect on September 1, 2009.
Families with payments above $300 a month in which the county agency agreed to absorb the additional cost should appeal any attempt by the county to reduce the payment to $240 by requesting a state administrative hearing. The information on how to request a hearing should be included on the IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY that will sent to each SAMS recipient. (See below). Remember that adoptive families have only fifteen days to request a hearing. The normal period is ninety days.
The announced reductions in state funding do not affect county funding and parents can legitimately argue that the county agency entered into the agreement based upon the needs of the child and circumstances of the family. Executive Order 15-S and the newly enacted SAMS rules refer to the availability of state funds, not county funds. Accordingly, parents with state subsidies over $300 per month can argue that that justification for reductions in state funding has no bearing on county financial participation.
Suppose, for example, that a child a state adoption maintenance subsidy of $600 per month. Until September 1, the state’s financial contribution is $300 and the county’s share is $300. While the state might succeed in reducing its share by $60 per month based upon the new rules, the county has no justification for a similar cut and the adoptive parents have a valid argument that the subsidy should not drop below $540 per month.
New Rules and Forms
The following presents the two new emergency SAMS rules, along with a copy of the notification each SAMS recipient will receive.
5101:2-44-06 Eligibility of adoptive family and adoptive child for the state
adoption maintenance subsidy program.
(A) In addition to the requirements in paragraph (B) of this rule, all of the following
eligibility requirements for the state adoption maintenance subsidy program shall
be met:
(1) The child is in the permanent custody of a public children services agency
(PCSA) or a private child placing agency (PCPA) and is legally available for
adoption.
(2) The child is a special needs child who, prior to the adoptive placement, has at
least one of the following needs or circumstances that may be a barrier to
placement or adoption or a barrier to a child being sustained in a substitute
care placement or adoptive home without financial assistance because the
child is at least one of the following:
(a) Is in a sibling group which should be placed together.
(b) Is a member of a minority or ethnic group.
(c) Is six years of age or older.
(d) Has remained in the permanent custody of a PCSA or PCPA for more
than one year.
(e) Has a medical condition, physical impairment, mental retardation or
developmental disability.
(f) Has an emotional disturbance or behavioral problem.
(g) Has a social or medical history or the background of the child's biological
family has a social or medical history which may place the child at risk
of acquiring a medical condition, a physical, mental or developmental
disability or an emotional disorder.
(h) Has been in the home of his or her prospective adoptive parents as a foster
child for at least one year and would experience severe separation and
loss if placed in another setting due to his or her significant emotional
ties with these foster parents as determined and documented by a
qualified mental health professional.
(i) Has experienced previous adoption disruption or multiple placements.
(3) The child is either:
(a) Under the age of eighteen.
(b) Between eighteen and twenty-one years of age and is mentally or
physically handicapped as diagnosed by a qualified professional.
(i) For the purpose of this rule, a qualified professional is defined as an
audiologist, licensed independent social worker, licensed
professional clinical counselor, medical doctor, orthopedist,
psychiatrist, psychologist, or speech/language pathologist. The
qualified professional shall only diagnose handicaps within the
professional's area of expertise.
(ii) A clear written statement of the child's mental or physical handicap
shall be supported by an assessment or evaluation from the
qualified professional including an opinion as to the origin of the
problem, past history, prognosis, and recommendations related to
future treatment needs.
(4) A PCSA or PCPA has approved the adoptive parent for adoptive placement
pursuant to Chapter 5101:2-48 of the Administrative Code. If a PCPA
approved the adoptive placement, the PCPA shall provide the PCSA with the
JFS 01673 "Assessment for Child Placement (Homestudy)" (rev. 8/2005),
JFS 01654 "Adoptive Placement Agreement" (rev. 10/2001) and JFS 01616
"Social and Medical History" (rev. 6/2006).
(5) The adoptive parent has applied and has been determined ineligible for the Title
IV-E adoption assistance program, in accordance with rule 5101:2-49-02 of
the Administrative Code. Eligibility for reimbursement of nonrecurring
adoption expenses under Title IV-E, 42 U.S.C. 673, June 17, 1980, pursuant
to rule 5101:2-49-21 of the Administrative Code, does not constitute
eligibility for Title IV-E adoption assistance.
(6) The adoptive family has the capability of providing the permanent family
relationships needed by the child.
(7) The needs of the child are beyond the economic resources of the adoptive
family.
(8) The acceptance of the child as a member of the adoptive parent's family would
not be in the child's best interest without state adoption subsidy payments.
(9) The adoptive family has completed the JFS 01613 "Application for State
Adoption Subsidy" (rev. 7/2004) and the PCSA has approved or denied the
JFS 01613 prior to the adoption finalization.
(B) An adoptive family is eligible for payments under the state adoption maintenance
subsidy if all the requirements in paragraph (A) of this rule are met and:
(1) The adoptive parent's annual gross income does not exceed one hundred and
twenty per cent of the median income of a family of the same size, including
the adoptive child, as most recently determined for this state pursuant to
division (B) of section 5153.163 of the Revised Code.
(2) The adoptive parent verifies the family's annual gross income by providing
verification, as applicable, from the most recent U.S. department of internal
revenue service (IRS) income tax form, proof of receipt of benefits from the
social security administration, proof of receipt of workers compensation, or
other income verification from other providers of pension benefits.
(C) The state adoption subsidy payment amount shall be agreed upon between the PCSA
and the adoptive parent and shall be based upon the needs of the adoptive child, the
circumstances of the adoptive family, and in accordance with the PCSA's adoption
policy.
(D) The state adoption maintenance subsidy program shall provide a maximum payment of two hundred forty dollars per month per child for an approved state adoption maintenance subsidy.
Effective: 08/13/2009 Emergency
5101:2-44-08 Redetermination and amendment of a state adoption
maintenance subsidy.
(A) When the Ohio department of job and family services (ODJFS) determines that state
funds are not available to maintain the state adoption maintenance subsidy program
at the current maximum monthly funding level and notifies the public children
services agency (PCSA) of the unavailability of state funds, the PCSA shall take
the following actions:
(1) Notify any adoptive parent receiving a monthly subsidy that is greater than two
hundred forty dollars per child. This PCSA notification of families shall
occur:
(a) No later than fifteen days before the action commences.
(b) By use of a notice specifically developed and designated by ODJFS.
(2) Enter into an amended agreement with the adoptive parent of the JFS 01615
"Approval for State Adoption Subsidy" (rev. 7/2004) within thirty days of the
effective date of this rule. The amended JFS 01615 shall provide for not
monthly payment in excess of the amount ODJFS has determined as available
for the program. Until such time as an amended agreement is executed, the
current JFS 01615 is terminated for any monthly amount in excess of two
hundred forty dollars per child.
(A)(B) Except as provided in paragraph (C) of this rule, the (PCSA) shall complete a redetermination of each state adoption maintenance subsidy one year from the initial effective date of the JFS 01615 "Approval for State Adoption Subsidy" (rev. 7/2004) or most recent
redetermination and amendment date and annually thereafter.
(C) Any recalculation and amendment to the JFS 01615 to address availability of state funds as provided in paragraph (A) of this rule does not change the date of the redetermination of the subsidy.
(B)(D) Except as provided in paragraph (A) of this rule, to initiate the redetermination
process, the PCSA shall provide written notice to the adoptive parent at least sixty
calendar days prior to the anniversary date of the effective JFS 01615 or most
recent redetermination or amendment.
(C)(E) Except as provided in paragraph (A) of this rule, the PCSA shall redetermine
the state adoption subsidy more often than annually upon written request of the
adoptive parent or if the PCSA is aware of substantial changes in the adoptive
parent's financial situation or the adoptive child's special needs. A redetermination
or amendment shall occur when:
(1) The adoptive parent's or adoptive child's eligibility status has changed.
(2) The addition or deletion of a state adoption maintenance subsidy is necessary.
(D)(F) Except as provided in paragraph (A) of this rule, the following are necessary
to redetermine or amend a JFS 01615:
(1) The adoptive parent shall provide written verification of continued financial
eligibility.
(2) The PCSA shall determine, from verification submitted by the adoptive parent,
if the adoptive child and the adoptive parent remain eligible pursuant to rule
5101:2-44-06 of the Administrative Code.
(E)(G) Except as provided in paragraph (A) of this rule, the PCSA shall complete the
redetermination and provide written notification to the adoptive parent of the
redetermination outcome at least fifteen days prior to the annual anniversary date of
the JFS 01615 or most recent redetermination, or within thirty days of a request for
an amendment.
(F)(H) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in no change or a change in the amount of state adoption
subsidy, the PCSA shall use the JFS 01615 to inform the adoptive parent of the
results and the effective date of the redetermined subsidy.
(G)(I) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in a decrease, suspension or termination of the state adoption
subsidy, the PCSA shall use the JFS 04065 "Prior Notice of Right to a State
Hearing" (rev. 5/2001) to inform the adoptive parent of the reason for the action, its
effective date and the right to a state hearing pursuant to section 5101.35 of the
Revised Code and division 5101:6 of the Administrative Code.
(H)(J) If the adoptive parent fails to comply with the requirements of a redetermination as
described in this rule, the PCSA shall suspend the state adoption subsidy pursuant
to rule 5101:2-44-10 of the Administrative Code or terminate the state adoption
subsidy pursuant to rule 5101:2-44-11 of the Administrative Code.
(I)(K) An adoptive parent receiving a state adoption subsidy shall report any significant
change in the adoptive family's financial situation or the adoptive child's special
needs within thirty days of the change to the PCSA that approved the state adoption
subsidy.
Effective: 08/13/2009
IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY
Name:
Case Number:
Address:
Public Children Services Agency:
City:
State, Zip Code:
Mailing Date:
Action We Are Taking In Your Case
Beginning September 1, 2009, your monthly subsidy payment will be reduced from $_______to $_________.
Reason For This Change
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.
Applicable Law
This action is based on the state budget bill (Section 309.10, Amended Substitute House Bill Number 1, 128th General Assembly) and Rules 5101:2-44-03, 2-44-06, 2-44-08 of the Ohio Administrative Code.
Questions?
If you do not understand this notice or have questions about it, you may call: __________________________
Name Telephone
Your Right To A State Hearing
If you believe that this change of law has been incorrectly applied to your case, you have the right to a state hearing. A state hearing lets you or your representative (lawyer, friend, relative) give your reasons for your belief. We will also attend the hearing to present our reasons for taking this action. A hearing officer from the Ohio Department of Job & Family Services will decide whether you or we are right.
If you win the hearing the action may not be taken, or if it already has been taken your subsidy could be restored. If you lose your hearing, you may have to pay back any subsidy amount that you were not eligible for while the hearing was pending.
If you want a state hearing, your hearing request must be received by ________________, 2009.
If you want your current subsidy to continue until the hearing, your hearing request must be received by _________________, 2009
If you do not want a state hearing, then do not return this form.
If you need legal assistance, you can contact your local bar association. If you want information on free legal services, you can contact your local legal aid office or call the Ohio State Legal Services Association toll free at 1-800-589-5888. You can also contact the Ohio Legal Rights Service toll free at 1-800-282-9181, whose goal is “to protect and advocate the rights of mentally ill persons, mentally retarded persons, developmentally disabled persons, and other disabled persons.”
I want a hearing because I think the change of law has been incorrectly applied to my case:
[ ]
Your signature Date Telephone E-mail
I also appoint this person as my authorized representative to help me with my state hearing:
[ ]
Name Address Telephone E-mail
If you want a state hearing, you must mail this form to the following:
Ohio Department of Job & Family Services
Bureau of State Hearing
P.O. Box 182825
Columbus, OH 43218-2825
Alternatively, you can make an oral hearing request with us.
Families with payments above $300 a month in which the county agency agreed to absorb the additional cost should appeal any attempt by the county to reduce the payment to $240 by requesting a state administrative hearing. The information on how to request a hearing should be included on the IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY that will sent to each SAMS recipient. (See below). Remember that adoptive families have only fifteen days to request a hearing. The normal period is ninety days.
The announced reductions in state funding do not affect county funding and parents can legitimately argue that the county agency entered into the agreement based upon the needs of the child and circumstances of the family. Executive Order 15-S and the newly enacted SAMS rules refer to the availability of state funds, not county funds. Accordingly, parents with state subsidies over $300 per month can argue that that justification for reductions in state funding has no bearing on county financial participation.
Suppose, for example, that a child a state adoption maintenance subsidy of $600 per month. Until September 1, the state’s financial contribution is $300 and the county’s share is $300. While the state might succeed in reducing its share by $60 per month based upon the new rules, the county has no justification for a similar cut and the adoptive parents have a valid argument that the subsidy should not drop below $540 per month.
New Rules and Forms
The following presents the two new emergency SAMS rules, along with a copy of the notification each SAMS recipient will receive.
5101:2-44-06 Eligibility of adoptive family and adoptive child for the state
adoption maintenance subsidy program.
(A) In addition to the requirements in paragraph (B) of this rule, all of the following
eligibility requirements for the state adoption maintenance subsidy program shall
be met:
(1) The child is in the permanent custody of a public children services agency
(PCSA) or a private child placing agency (PCPA) and is legally available for
adoption.
(2) The child is a special needs child who, prior to the adoptive placement, has at
least one of the following needs or circumstances that may be a barrier to
placement or adoption or a barrier to a child being sustained in a substitute
care placement or adoptive home without financial assistance because the
child is at least one of the following:
(a) Is in a sibling group which should be placed together.
(b) Is a member of a minority or ethnic group.
(c) Is six years of age or older.
(d) Has remained in the permanent custody of a PCSA or PCPA for more
than one year.
(e) Has a medical condition, physical impairment, mental retardation or
developmental disability.
(f) Has an emotional disturbance or behavioral problem.
(g) Has a social or medical history or the background of the child's biological
family has a social or medical history which may place the child at risk
of acquiring a medical condition, a physical, mental or developmental
disability or an emotional disorder.
(h) Has been in the home of his or her prospective adoptive parents as a foster
child for at least one year and would experience severe separation and
loss if placed in another setting due to his or her significant emotional
ties with these foster parents as determined and documented by a
qualified mental health professional.
(i) Has experienced previous adoption disruption or multiple placements.
(3) The child is either:
(a) Under the age of eighteen.
(b) Between eighteen and twenty-one years of age and is mentally or
physically handicapped as diagnosed by a qualified professional.
(i) For the purpose of this rule, a qualified professional is defined as an
audiologist, licensed independent social worker, licensed
professional clinical counselor, medical doctor, orthopedist,
psychiatrist, psychologist, or speech/language pathologist. The
qualified professional shall only diagnose handicaps within the
professional's area of expertise.
(ii) A clear written statement of the child's mental or physical handicap
shall be supported by an assessment or evaluation from the
qualified professional including an opinion as to the origin of the
problem, past history, prognosis, and recommendations related to
future treatment needs.
(4) A PCSA or PCPA has approved the adoptive parent for adoptive placement
pursuant to Chapter 5101:2-48 of the Administrative Code. If a PCPA
approved the adoptive placement, the PCPA shall provide the PCSA with the
JFS 01673 "Assessment for Child Placement (Homestudy)" (rev. 8/2005),
JFS 01654 "Adoptive Placement Agreement" (rev. 10/2001) and JFS 01616
"Social and Medical History" (rev. 6/2006).
(5) The adoptive parent has applied and has been determined ineligible for the Title
IV-E adoption assistance program, in accordance with rule 5101:2-49-02 of
the Administrative Code. Eligibility for reimbursement of nonrecurring
adoption expenses under Title IV-E, 42 U.S.C. 673, June 17, 1980, pursuant
to rule 5101:2-49-21 of the Administrative Code, does not constitute
eligibility for Title IV-E adoption assistance.
(6) The adoptive family has the capability of providing the permanent family
relationships needed by the child.
(7) The needs of the child are beyond the economic resources of the adoptive
family.
(8) The acceptance of the child as a member of the adoptive parent's family would
not be in the child's best interest without state adoption subsidy payments.
(9) The adoptive family has completed the JFS 01613 "Application for State
Adoption Subsidy" (rev. 7/2004) and the PCSA has approved or denied the
JFS 01613 prior to the adoption finalization.
(B) An adoptive family is eligible for payments under the state adoption maintenance
subsidy if all the requirements in paragraph (A) of this rule are met and:
(1) The adoptive parent's annual gross income does not exceed one hundred and
twenty per cent of the median income of a family of the same size, including
the adoptive child, as most recently determined for this state pursuant to
division (B) of section 5153.163 of the Revised Code.
(2) The adoptive parent verifies the family's annual gross income by providing
verification, as applicable, from the most recent U.S. department of internal
revenue service (IRS) income tax form, proof of receipt of benefits from the
social security administration, proof of receipt of workers compensation, or
other income verification from other providers of pension benefits.
(C) The state adoption subsidy payment amount shall be agreed upon between the PCSA
and the adoptive parent and shall be based upon the needs of the adoptive child, the
circumstances of the adoptive family, and in accordance with the PCSA's adoption
policy.
(D) The state adoption maintenance subsidy program shall provide a maximum payment of two hundred forty dollars per month per child for an approved state adoption maintenance subsidy.
Effective: 08/13/2009 Emergency
5101:2-44-08 Redetermination and amendment of a state adoption
maintenance subsidy.
(A) When the Ohio department of job and family services (ODJFS) determines that state
funds are not available to maintain the state adoption maintenance subsidy program
at the current maximum monthly funding level and notifies the public children
services agency (PCSA) of the unavailability of state funds, the PCSA shall take
the following actions:
(1) Notify any adoptive parent receiving a monthly subsidy that is greater than two
hundred forty dollars per child. This PCSA notification of families shall
occur:
(a) No later than fifteen days before the action commences.
(b) By use of a notice specifically developed and designated by ODJFS.
(2) Enter into an amended agreement with the adoptive parent of the JFS 01615
"Approval for State Adoption Subsidy" (rev. 7/2004) within thirty days of the
effective date of this rule. The amended JFS 01615 shall provide for not
monthly payment in excess of the amount ODJFS has determined as available
for the program. Until such time as an amended agreement is executed, the
current JFS 01615 is terminated for any monthly amount in excess of two
hundred forty dollars per child.
(A)(B) Except as provided in paragraph (C) of this rule, the (PCSA) shall complete a redetermination of each state adoption maintenance subsidy one year from the initial effective date of the JFS 01615 "Approval for State Adoption Subsidy" (rev. 7/2004) or most recent
redetermination and amendment date and annually thereafter.
(C) Any recalculation and amendment to the JFS 01615 to address availability of state funds as provided in paragraph (A) of this rule does not change the date of the redetermination of the subsidy.
(B)(D) Except as provided in paragraph (A) of this rule, to initiate the redetermination
process, the PCSA shall provide written notice to the adoptive parent at least sixty
calendar days prior to the anniversary date of the effective JFS 01615 or most
recent redetermination or amendment.
(C)(E) Except as provided in paragraph (A) of this rule, the PCSA shall redetermine
the state adoption subsidy more often than annually upon written request of the
adoptive parent or if the PCSA is aware of substantial changes in the adoptive
parent's financial situation or the adoptive child's special needs. A redetermination
or amendment shall occur when:
(1) The adoptive parent's or adoptive child's eligibility status has changed.
(2) The addition or deletion of a state adoption maintenance subsidy is necessary.
(D)(F) Except as provided in paragraph (A) of this rule, the following are necessary
to redetermine or amend a JFS 01615:
(1) The adoptive parent shall provide written verification of continued financial
eligibility.
(2) The PCSA shall determine, from verification submitted by the adoptive parent,
if the adoptive child and the adoptive parent remain eligible pursuant to rule
5101:2-44-06 of the Administrative Code.
(E)(G) Except as provided in paragraph (A) of this rule, the PCSA shall complete the
redetermination and provide written notification to the adoptive parent of the
redetermination outcome at least fifteen days prior to the annual anniversary date of
the JFS 01615 or most recent redetermination, or within thirty days of a request for
an amendment.
(F)(H) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in no change or a change in the amount of state adoption
subsidy, the PCSA shall use the JFS 01615 to inform the adoptive parent of the
results and the effective date of the redetermined subsidy.
(G)(I) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in a decrease, suspension or termination of the state adoption
subsidy, the PCSA shall use the JFS 04065 "Prior Notice of Right to a State
Hearing" (rev. 5/2001) to inform the adoptive parent of the reason for the action, its
effective date and the right to a state hearing pursuant to section 5101.35 of the
Revised Code and division 5101:6 of the Administrative Code.
(H)(J) If the adoptive parent fails to comply with the requirements of a redetermination as
described in this rule, the PCSA shall suspend the state adoption subsidy pursuant
to rule 5101:2-44-10 of the Administrative Code or terminate the state adoption
subsidy pursuant to rule 5101:2-44-11 of the Administrative Code.
(I)(K) An adoptive parent receiving a state adoption subsidy shall report any significant
change in the adoptive family's financial situation or the adoptive child's special
needs within thirty days of the change to the PCSA that approved the state adoption
subsidy.
Effective: 08/13/2009
IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY
Name:
Case Number:
Address:
Public Children Services Agency:
City:
State, Zip Code:
Mailing Date:
Action We Are Taking In Your Case
Beginning September 1, 2009, your monthly subsidy payment will be reduced from $_______to $_________.
Reason For This Change
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.
Applicable Law
This action is based on the state budget bill (Section 309.10, Amended Substitute House Bill Number 1, 128th General Assembly) and Rules 5101:2-44-03, 2-44-06, 2-44-08 of the Ohio Administrative Code.
Questions?
If you do not understand this notice or have questions about it, you may call: __________________________
Name Telephone
Your Right To A State Hearing
If you believe that this change of law has been incorrectly applied to your case, you have the right to a state hearing. A state hearing lets you or your representative (lawyer, friend, relative) give your reasons for your belief. We will also attend the hearing to present our reasons for taking this action. A hearing officer from the Ohio Department of Job & Family Services will decide whether you or we are right.
If you win the hearing the action may not be taken, or if it already has been taken your subsidy could be restored. If you lose your hearing, you may have to pay back any subsidy amount that you were not eligible for while the hearing was pending.
If you want a state hearing, your hearing request must be received by ________________, 2009.
If you want your current subsidy to continue until the hearing, your hearing request must be received by _________________, 2009
If you do not want a state hearing, then do not return this form.
If you need legal assistance, you can contact your local bar association. If you want information on free legal services, you can contact your local legal aid office or call the Ohio State Legal Services Association toll free at 1-800-589-5888. You can also contact the Ohio Legal Rights Service toll free at 1-800-282-9181, whose goal is “to protect and advocate the rights of mentally ill persons, mentally retarded persons, developmentally disabled persons, and other disabled persons.”
I want a hearing because I think the change of law has been incorrectly applied to my case:
[ ]
Your signature Date Telephone E-mail
I also appoint this person as my authorized representative to help me with my state hearing:
[ ]
Name Address Telephone E-mail
If you want a state hearing, you must mail this form to the following:
Ohio Department of Job & Family Services
Bureau of State Hearing
P.O. Box 182825
Columbus, OH 43218-2825
Alternatively, you can make an oral hearing request with us.
Thursday, August 13, 2009
Another Change to the Title IV-E Adoption Assistance Program
It appears that there will be no attempt to make automatic changes in existing Title IV-E adoption assistance payments, which signifies the state’s acceptance that adoption assistance agreements are individual contracts. Please let us know if you receive a notification that your adoption assistance payment is being reduced without your consent. Then, immediately contact the Ohio Department of Job and Family Services’ (ODJFS) Bureau of State Hearings and ask for a hearing.
After further consideration and discussions with the Public Children Services Association of Ohio (PCSAO), Sandra Holt, Deputy Director for Family and Children Services at the Ohio Department of Job and Family Services (ODJFS) announced new changes in Ohio’s Title IV-E adoption assistance program in a letter to county children services directors dated August 7, 2009. See the previous blog for a discussion of programs other that Title IV-E adoption assistance. The most recent communication corrects some changes announced in the Deputy Director’s letter of July 31. 2009.
No Automatic Changes in Current Benefits
The Deputy Director’s letter cites Ohio Administrative Code rule 5101:2-49-12 which states
“. . . . the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon 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.”
There is no mention of unilateral or automatic reductions in existing agreements, which signals the acceptance of adoption assistance agreements a contracts.
State Participation Rates for Agreements Negotiated After September 1, 2009
The August 7, 2009 letter announced that the state will provide the non federal portion of adoption assistance benefits up to a maximum payment of $240 per month. The current federal participation rate is 68.34% and the non-federal matching rate is 33.66%. This means that for every monthly adoption assistance payment of $240, the federal share will be about $164 and the state’s non-federal share will be about $76.
Counties will continue to be responsible the non federal portion of any negotiated adoption assistance payment over $240 per month. With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were with the state provided the non-federal portion of adoption assistance up to payments of $300 per month.
Federal and state regulations governing negotiations based upon the needs of the child and circumstances of the family have not changed. Adoptive parents should be as assertive as before in negotiating fair and adequate adoption assistance agreements on behalf of their special needs children.
After further consideration and discussions with the Public Children Services Association of Ohio (PCSAO), Sandra Holt, Deputy Director for Family and Children Services at the Ohio Department of Job and Family Services (ODJFS) announced new changes in Ohio’s Title IV-E adoption assistance program in a letter to county children services directors dated August 7, 2009. See the previous blog for a discussion of programs other that Title IV-E adoption assistance. The most recent communication corrects some changes announced in the Deputy Director’s letter of July 31. 2009.
No Automatic Changes in Current Benefits
The Deputy Director’s letter cites Ohio Administrative Code rule 5101:2-49-12 which states
“. . . . the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon 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.”
There is no mention of unilateral or automatic reductions in existing agreements, which signals the acceptance of adoption assistance agreements a contracts.
State Participation Rates for Agreements Negotiated After September 1, 2009
The August 7, 2009 letter announced that the state will provide the non federal portion of adoption assistance benefits up to a maximum payment of $240 per month. The current federal participation rate is 68.34% and the non-federal matching rate is 33.66%. This means that for every monthly adoption assistance payment of $240, the federal share will be about $164 and the state’s non-federal share will be about $76.
Counties will continue to be responsible the non federal portion of any negotiated adoption assistance payment over $240 per month. With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were with the state provided the non-federal portion of adoption assistance up to payments of $300 per month.
Federal and state regulations governing negotiations based upon the needs of the child and circumstances of the family have not changed. Adoptive parents should be as assertive as before in negotiating fair and adequate adoption assistance agreements on behalf of their special needs children.
State Adoption Maintenance Subsidy Changed Again; The Wheels Keep on Turning
After further consideration and discussions with the Public Children Services Association of Ohio (PCSAO), Sandra Holt, Deputy Director for Family and Children Services at the Ohio Department of Job and Family Services (ODJFS) announced new changes in Ohio’s state adoption maintenance subsidy program in a letter to county agency directors, dated August 7, 2009. The most recent communication some corrects some changes announced in the Deputy Director’s letter of July 31. 2009. No changes were announced in the PASSS program and the program for reimbursement of non-recurring adoption expenses is still scheduled to be reduced from a maximum of $2,000 to a maximum of $1,000 beginning with applications signed after September 1, 2009. Changes in the Title IV-E adoption assistance program will be discussed in the next blog.
The State Adoption Maintenance Subsidy (SAMS)
The state adoption maintenance subsidy, headed for termination on September 1, 2009 will now continue until 2018. Not coincidentally, that is the year in which the ADC-relatedness requirement for federal Title IV-E adoption assistance will be completely phased out of existence. The phase out begins on October 1, 2009, for children age 16 and over and continues down the age scale two years at a time.
The state’s contribution to the state subsidy program will be $240 per month, which for all practical purposes means that the maximum payment rate will be $240 per month. Unlike the federal Title IV-E adoption assistance program, counties receive no outside funds if they agree to payment over the state participation rate. Any payment over $240 would come entirely from county coffers.
The letter also announced the intention of lowering existing as well as new state adoption subsidy payments to $240 per month. The Deputy Director cited the language on the JFS 01615 Approval for a State Subsidy form as the justification for lowering existing state subsidy payments, which states “the approval and continuation of the state adoption maintenance subsidy is contingent upon the availability of the funds.” The letter continues:
“The subsidy may be suspended or terminated in the event of a judicial, executive or legislative action suspending or terminating the authority of the agency to continue state adoption maintenance subsidy.” An Executive Order is expected to authorize emergency rules that lower the state adoption payment rates for both existing and future non IV-E subsidies.
Each adoptive family with a state adoption maintenance subsidy will receive written notification . Parents will have the opportunity to appeal the cut to their subsidy if they request a hearing within 15 days after receiving the notice. A timely request for a hearing would freeze the payment at its current rate, but the adoptive family would be subject to repaying the money if it lost the hearing.
Before deciding to appeal, parents should review the language on their subsidy agreement. Those children that were receiving more than $300 per month should also consider an appeal.
The State Adoption Maintenance Subsidy (SAMS)
The state adoption maintenance subsidy, headed for termination on September 1, 2009 will now continue until 2018. Not coincidentally, that is the year in which the ADC-relatedness requirement for federal Title IV-E adoption assistance will be completely phased out of existence. The phase out begins on October 1, 2009, for children age 16 and over and continues down the age scale two years at a time.
The state’s contribution to the state subsidy program will be $240 per month, which for all practical purposes means that the maximum payment rate will be $240 per month. Unlike the federal Title IV-E adoption assistance program, counties receive no outside funds if they agree to payment over the state participation rate. Any payment over $240 would come entirely from county coffers.
The letter also announced the intention of lowering existing as well as new state adoption subsidy payments to $240 per month. The Deputy Director cited the language on the JFS 01615 Approval for a State Subsidy form as the justification for lowering existing state subsidy payments, which states “the approval and continuation of the state adoption maintenance subsidy is contingent upon the availability of the funds.” The letter continues:
“The subsidy may be suspended or terminated in the event of a judicial, executive or legislative action suspending or terminating the authority of the agency to continue state adoption maintenance subsidy.” An Executive Order is expected to authorize emergency rules that lower the state adoption payment rates for both existing and future non IV-E subsidies.
Each adoptive family with a state adoption maintenance subsidy will receive written notification . Parents will have the opportunity to appeal the cut to their subsidy if they request a hearing within 15 days after receiving the notice. A timely request for a hearing would freeze the payment at its current rate, but the adoptive family would be subject to repaying the money if it lost the hearing.
Before deciding to appeal, parents should review the language on their subsidy agreement. Those children that were receiving more than $300 per month should also consider an appeal.
Thursday, August 6, 2009
Adoption Assistance: The Need for a Statewide Communication Network
The Need for a Communication Network
In the wake of budget cuts to adoption assistance programs, we must establish an effective statewide communication network. County agencies have been sending adoptive parents letters requesting that they consider a voluntary reduction in their Title IV-E adoption assistance benefits. So far, the position that existing adoption assistance benefits cannot be automatically reduced unless the parents agree appears to be accepted. The federal Adminstration for Children and Families and federal courts have recognized adoption assistance agreements as contracts that cannot be automatically altered. Please contact me at topohanlon@gmail.com if you receive a notice informing you that the county plans to reduce your adoption assistance benefits whether your consent or not. In such cases, contact the ODJFS Bureau of State Hearings imediately and request a hearing.
If you receive a letter asking you to voluntarily accept a cut in adoption assistance, the choice is up to you. If you disagree, I would suggest an e-mail or letter informing the county that the adoption assistance agreement is a contract that cannot be altered except by mutual consent. You can add that after considering your child's needs and family circumstances it would not be in their interest to reduce the level of support. Accordingly, you are rejecting the request to amend the adoption assistance agreement and reduce the adoption assistance benefit.
Negotiations of future adoption assistance agreements after September 1, 2009.
Adoption assistance agreements must still be determined by negotiation based on a consideration of the needs of the child and circumstances of the family.
In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’s 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.”
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. This decision is significant because it recognizes the authority of the federal Child Welfare Policy Manual to clarify the meaning of Ohio rules.
Please contact me if the agency refuses to negotiate in accordance with the criteria quoted above. Remember that the federal financial participation rate is currently 68.34% of each adoption assistance payment. The county’s non federal share is now 31.66%. Traditionally, the federal participation rate was around 60% and the non-federal share was about 40%. After September 1, 2009, the county agencies will have to provide the non federal share of each dollar in IV-E adoption assistance above $225 per month. On the other hand, the county’s share of the cost is significantly lower than it used to be prior to April 2009.
In the wake of budget cuts to adoption assistance programs, we must establish an effective statewide communication network. County agencies have been sending adoptive parents letters requesting that they consider a voluntary reduction in their Title IV-E adoption assistance benefits. So far, the position that existing adoption assistance benefits cannot be automatically reduced unless the parents agree appears to be accepted. The federal Adminstration for Children and Families and federal courts have recognized adoption assistance agreements as contracts that cannot be automatically altered. Please contact me at topohanlon@gmail.com if you receive a notice informing you that the county plans to reduce your adoption assistance benefits whether your consent or not. In such cases, contact the ODJFS Bureau of State Hearings imediately and request a hearing.
If you receive a letter asking you to voluntarily accept a cut in adoption assistance, the choice is up to you. If you disagree, I would suggest an e-mail or letter informing the county that the adoption assistance agreement is a contract that cannot be altered except by mutual consent. You can add that after considering your child's needs and family circumstances it would not be in their interest to reduce the level of support. Accordingly, you are rejecting the request to amend the adoption assistance agreement and reduce the adoption assistance benefit.
Negotiations of future adoption assistance agreements after September 1, 2009.
Adoption assistance agreements must still be determined by negotiation based on a consideration of the needs of the child and circumstances of the family.
In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’s 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.”
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. This decision is significant because it recognizes the authority of the federal Child Welfare Policy Manual to clarify the meaning of Ohio rules.
Please contact me if the agency refuses to negotiate in accordance with the criteria quoted above. Remember that the federal financial participation rate is currently 68.34% of each adoption assistance payment. The county’s non federal share is now 31.66%. Traditionally, the federal participation rate was around 60% and the non-federal share was about 40%. After September 1, 2009, the county agencies will have to provide the non federal share of each dollar in IV-E adoption assistance above $225 per month. On the other hand, the county’s share of the cost is significantly lower than it used to be prior to April 2009.
Tuesday, August 4, 2009
Ohio County Agencies Planning Automatic or Across the Board Cuts in Adoption Assistance in September 2009?
Note for parents: At this point, we don't know if county agencies are going to attempt to reduce adoption assistance payments. We believe that the law is clearly on your side. Share this blog and the preceding blog with other parents, parents support groups and state legislators. If you receive a communication announcing a reduction in your Title IV-E adoption assistance payments, contact the Bureau of State Hearings immediately and request a hearing; please also contact me and other parents.
An adoptive parent with an existing adoption assistance agreement phoned and informed me that Montgomery County was planning to reduce her Title IV-E adoption assistance payments in September of 2009. In an earlier paper, I argued that neither the state, nor county could make automatic cuts in adoption assistance agreements unless there were across the board cuts in foster care payments. Even then, the only adoption assistance payments that might be affected were those that exceeded the appropriate foster home rate for the child. In effect this means that an adoption assistance payment cannot be cut beyond the amount it exceeds the foster care payment.
Three points must be considered before the state or any individual county attempts any rash actions to make across the board or automatic cuts in adoption assistance.
1. The federal Administration for Children and Families and federal courts in recent Missouri and Oregon have determined that adoption assistance agreements are individual contracts.
2. Adoptive parents have full due process rights under federal regulations at 45 CFR 205.10 that preclude any automatic reduction of benefits. A request for a hearing freezes any attempted reduction in place until due process takes its course. Any attempt to make automatic or across the board cuts in adoption assistance will be greeted with hundreds, perhaps thousands of state administrative hearings.
3. Federal policy stipulates that budget problems are not sufficient grounds for automatic reductions of adoption assistance payments.
4. Federal and state laws both stipulate that existing agreements cannot be modified with the consent of the parents.
Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.
1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for Federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?
Answer: No. 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 in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence. (Emphasis added).
OAC 5101:2-49-12 (Ohio Rule)
A) Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. The modified/amended agreement shall specify the duration of the agreement and shall meet all other requirements of rule 5101:2-49-03 of the Administrative Code.
(B) At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon 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. The modified/amended agreement shall meet all requirements of rule 5101:2-49-10 of the Administrative Code.
(C) In cases where the PCSA and the adoptive parent(s) cannot agree on the amount of AA that should be provided, they may complete a JFS 01453 for a mutually acceptable level of AA payment while negotiations continue or the adoptive parent(s) request a state hearing. (Emphasis added).
Attempts to make across the board reductions in adoption assistance would not only generate hundreds of hearings, but the provisions in federal and state law assure that the appellants would prevail. Any attempt by the state to deny due process is a violation of the IV-E State Plan. A class action law suit would soon follow. Does the state and/or Ohio counties want to completely destroy the little good will that is left in the special needs adoption program?
Cuts in Ohio’s Support for Federal Adoption Assistance; Can the State or County Agencies Make Automatic Cuts in Existing Adoption Assistance Payments?
Title IV-E Adoption Assistance
State participation in the federal Title IV-E adoption assistance program will be limited to monthly adoption assistance payments of $240 or less. Prior to the cut, the state provided the non federal portion of payments up to $300 per month. Since last April, the federal financial participation rate has been around 68.34 %, the state’s now down to about 31.66%. The state’s non federal contribution to an adoption assistance payment of $240 per month would be around $76.
The will be effective on September 1, 2009. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect. Counties will be responsible for the non federal portion (31.7%) of adoption assistance payments over $240 per month instead of payments over $300 per month as was the case until the budget cuts.
Federal and state laws governing negotiation of IV-E adoption assistance agreements remain the same and adoptive parents should continue to insist that the current procedures and criteria continue to be followed. Adoption assistance agreements must be negotiated and the negotiations must take into consideration the ordinary and special needs of the child and the overall circumstances of the adoptive family. Both factors must be given equal consideration. Parents should also continue to exercise their appeal rights through the state administrative hearing system when negotiations fail to be productive.
Existing Adoption Assistance Agreements
According to the federal Child Welfare Policy Manual, the Ohio Department of Job and Family Services (ODJFS) cannot institute automatic or across the board cuts to existing adoption assistance payments.
Section 8.2A of the manual asks and answers the following question:
1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for Federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?
Answer: No. 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 in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence.
There are maximum statewide foster care rates in Ohio, but regular rates top out at $170 per day (around $5,100). The maximum difficulty of care rates add an additional $100 per day for specialized category and $200 per day for the exceptional care category. The chances of the state reducing maximum foster care rates anywhere close to existing adoption assistance payment levels are virtually nil. As I will argue, the only those families whose adoption assistance payments exceeded state foster care maximums could have their adoption assistance automatically reduced.
Why do federal officials cite across the board foster care reductions as the only acceptable reason for across the board cuts in adoption assistance?
Under current law, the federal share of funding for adoption assistance is available up to the child’s foster home level of support, that is the rate of payment the child would receive if they were placed in a foster home suitable to their level of care instead of an adoptive home. The only logical reason why an across the board cut in foster care rates would justify automatic or across the board reductions in adoption assistance is that existing adoption assistance payments would be higher than the newly reduced foster care rates. That portion of the adoption assistance payment that exceeded the foster care rate would not eligible for federal financial participation.
Suppose, for example, that standard therapeutic or exceptional needs foster care rate were $1,600 a month. The state reduces the therapeutic exceptional needs foster care to $1,500 per month. Adoption assistance agreements calling for adoption assistance payments of $1,600 to children with a therapeutic exceptional level of care would only be eligible for federal financial participation up to a maximum of $1,500 per month. In such situations, federal policy allows a state to make automatic or across the board cuts to adoption assistance payments.
I would argue, however, that the state cannot make any automatic cuts or across the board cuts adoption assistance payments that do not exceed the appropriate foster care rate for the child. In our example, the state could not reduce the adoption assistance of children with agreements calling for payments of $1,500 per month or less.
County agencies can always propose a reduction in adoption assistance, but must do so on an individual case by case basis and provide full notice and appeal rights. The burden of proof would rest with the county agency to establish why the needs of the child and family circumstances warranted a decrease. As we have seen, budget problems are not a valid reason.
Can Counties make automatic or across the board reductions in existing adoption assistance payments by making across the board cuts in foster care?
The answer to this question is not entirely clear, but individual counties would run into a number of difficulties in attempting to make automatic or across the board cuts in existing adoption assistance payments.
Under current law, the federal share of funding for adoption assistance is available up to the child’s foster home level of support, that is the rate of payment the child would receive if they were placed in a foster home suitable to their level of care instead of an adoptive home. Suppose for example, a child in a therapeutic foster home received or would receive $1,600 in monthly support. Federal financial participation would be available for an adoption assistance payment up to $1,600 if the agency and parties negotiated an agreement for that amount. At approximately 68.3%, the federal share of a $1,600 per month adoption assistance payment would be around $1,093.
Now, suppose across the board cuts in foster care lower the therapeutic foster care rate from $1,600 to $1,500 per month. Federal financial participation would only be available for adoption assistance payments up to $1,500 per month. It is for this reason that the federal Administration for Children and Families permit states to make across the board cuts in adoption assistance only when there are across the board cuts in foster care. Such cuts might affect federal financial participation rates.
It is not entirely clear, whether a political subdivision such as an Ohio county could legally make across the board cuts in adoption assistance by making across the board cuts in foster care. For the sake of argument, however, let us suppose that such a policy is permissible under the law.
Across the board cuts include must cuts in the specialized rates paid to a number of private service providers which provide foster homes under contract with county agencies. Recent trends have witnessed a growth in contracted foster care services, especially for child with high levels of care, as counties have struggled to secure an adequate number of qualified foster parents. If a child in a therapeutic foster home operated by a private provider qualifies for federal Title IV-E foster care maintenance and the foster parents receive $2,000 a month in support, the Ohio county benefits from 60% federal financial participation or about $1,200 in direct payments to that home. If the child were to be adopted by their therapeutic foster parents, federal participation in IV-E adoption assistance would be available for payments of up to $2,000 per month if the parents and agency negotiated an agreement for that amount.
Issue: Adoptive Parents often settle for adoption assistance payments that are lower than the child’s foster care rate, especially in cases involving specialized levels of care.
To carry the above example forward, suppose the county lowered its therapeutic foster care rate from $1,600 to $1,500. It is quite likely that few families that have adopted children through the county with a therapeutic level of care have adoption assistance agreements calling for monthly payments of $1,600. I doubt whether very many would have agreements in place calling for adoption assistance payments of $1,500. What about families whose adoption assistance payments remain at or below the foster care rates even after the county makes across the board cuts?
Issue: May a county cut adoption assistance payments if they remain at or below the foster care rates appropriate for the child?
Continuing our example, suppose after cutting the therapeutic foster care rate from $1,600 to $1,500, the highest adoption assistance rate in the county is $1,400. I would argue that the county cannot make any automatic cuts in those adoption assistance payments as long as they do not exceed the appropriate foster care rate for that child.
County agencies can always propose a reduction in adoption assistance, but must do so on an individual case by case basis and provide full notice and appeal rights. The burden of proof would rest with the county agency to establish why the needs of the child and family circumstances warranted a decrease. As we have seen, budget problems are not a valid reason.
My position rests on the fact that adoption assistance agreements are individual contracts, a position supported by Region IV of the federal Administration for Children and Families and two recent federal court decisions.
On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.
Finally, in responding to an inquiries about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”
Summary
Based on federal policy issuances, court decisions and federal law itself, I feel confident in stating that county agencies cannot make automatic cuts in existing Title IV-E adoption assistance payments, unless there are across the board foster care cuts and then only in those cases where the adoption assistance payment exceeds the new foster care rate. In all other cases, where the adoption assistance payment remains at or below the existing foster care rate, the county must first propose to reduce the individual family’s payment, then show at hearing why such a reduction is justified. Under state regulations, the reduction could not take place until the appeal process had run its course. Counties would face dozens, perhaps hundreds of hearings and their chances of prevailing would not be good.
One more point deserves consideration. In a time, when the search for qualified foster parents has county agencies turning to private service providers in increasing numbers, how much can counties lower foster care rates without driving foster parents away? In tough economic times, the number of children entering foster care usually increases.
State participation in the federal Title IV-E adoption assistance program will be limited to monthly adoption assistance payments of $240 or less. Prior to the cut, the state provided the non federal portion of payments up to $300 per month. Since last April, the federal financial participation rate has been around 68.34 %, the state’s now down to about 31.66%. The state’s non federal contribution to an adoption assistance payment of $240 per month would be around $76.
The will be effective on September 1, 2009. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect. Counties will be responsible for the non federal portion (31.7%) of adoption assistance payments over $240 per month instead of payments over $300 per month as was the case until the budget cuts.
Federal and state laws governing negotiation of IV-E adoption assistance agreements remain the same and adoptive parents should continue to insist that the current procedures and criteria continue to be followed. Adoption assistance agreements must be negotiated and the negotiations must take into consideration the ordinary and special needs of the child and the overall circumstances of the adoptive family. Both factors must be given equal consideration. Parents should also continue to exercise their appeal rights through the state administrative hearing system when negotiations fail to be productive.
Existing Adoption Assistance Agreements
According to the federal Child Welfare Policy Manual, the Ohio Department of Job and Family Services (ODJFS) cannot institute automatic or across the board cuts to existing adoption assistance payments.
Section 8.2A of the manual asks and answers the following question:
1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for Federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?
Answer: No. 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 in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence.
There are maximum statewide foster care rates in Ohio, but regular rates top out at $170 per day (around $5,100). The maximum difficulty of care rates add an additional $100 per day for specialized category and $200 per day for the exceptional care category. The chances of the state reducing maximum foster care rates anywhere close to existing adoption assistance payment levels are virtually nil. As I will argue, the only those families whose adoption assistance payments exceeded state foster care maximums could have their adoption assistance automatically reduced.
Why do federal officials cite across the board foster care reductions as the only acceptable reason for across the board cuts in adoption assistance?
Under current law, the federal share of funding for adoption assistance is available up to the child’s foster home level of support, that is the rate of payment the child would receive if they were placed in a foster home suitable to their level of care instead of an adoptive home. The only logical reason why an across the board cut in foster care rates would justify automatic or across the board reductions in adoption assistance is that existing adoption assistance payments would be higher than the newly reduced foster care rates. That portion of the adoption assistance payment that exceeded the foster care rate would not eligible for federal financial participation.
Suppose, for example, that standard therapeutic or exceptional needs foster care rate were $1,600 a month. The state reduces the therapeutic exceptional needs foster care to $1,500 per month. Adoption assistance agreements calling for adoption assistance payments of $1,600 to children with a therapeutic exceptional level of care would only be eligible for federal financial participation up to a maximum of $1,500 per month. In such situations, federal policy allows a state to make automatic or across the board cuts to adoption assistance payments.
I would argue, however, that the state cannot make any automatic cuts or across the board cuts adoption assistance payments that do not exceed the appropriate foster care rate for the child. In our example, the state could not reduce the adoption assistance of children with agreements calling for payments of $1,500 per month or less.
County agencies can always propose a reduction in adoption assistance, but must do so on an individual case by case basis and provide full notice and appeal rights. The burden of proof would rest with the county agency to establish why the needs of the child and family circumstances warranted a decrease. As we have seen, budget problems are not a valid reason.
Can Counties make automatic or across the board reductions in existing adoption assistance payments by making across the board cuts in foster care?
The answer to this question is not entirely clear, but individual counties would run into a number of difficulties in attempting to make automatic or across the board cuts in existing adoption assistance payments.
Under current law, the federal share of funding for adoption assistance is available up to the child’s foster home level of support, that is the rate of payment the child would receive if they were placed in a foster home suitable to their level of care instead of an adoptive home. Suppose for example, a child in a therapeutic foster home received or would receive $1,600 in monthly support. Federal financial participation would be available for an adoption assistance payment up to $1,600 if the agency and parties negotiated an agreement for that amount. At approximately 68.3%, the federal share of a $1,600 per month adoption assistance payment would be around $1,093.
Now, suppose across the board cuts in foster care lower the therapeutic foster care rate from $1,600 to $1,500 per month. Federal financial participation would only be available for adoption assistance payments up to $1,500 per month. It is for this reason that the federal Administration for Children and Families permit states to make across the board cuts in adoption assistance only when there are across the board cuts in foster care. Such cuts might affect federal financial participation rates.
It is not entirely clear, whether a political subdivision such as an Ohio county could legally make across the board cuts in adoption assistance by making across the board cuts in foster care. For the sake of argument, however, let us suppose that such a policy is permissible under the law.
Across the board cuts include must cuts in the specialized rates paid to a number of private service providers which provide foster homes under contract with county agencies. Recent trends have witnessed a growth in contracted foster care services, especially for child with high levels of care, as counties have struggled to secure an adequate number of qualified foster parents. If a child in a therapeutic foster home operated by a private provider qualifies for federal Title IV-E foster care maintenance and the foster parents receive $2,000 a month in support, the Ohio county benefits from 60% federal financial participation or about $1,200 in direct payments to that home. If the child were to be adopted by their therapeutic foster parents, federal participation in IV-E adoption assistance would be available for payments of up to $2,000 per month if the parents and agency negotiated an agreement for that amount.
Issue: Adoptive Parents often settle for adoption assistance payments that are lower than the child’s foster care rate, especially in cases involving specialized levels of care.
To carry the above example forward, suppose the county lowered its therapeutic foster care rate from $1,600 to $1,500. It is quite likely that few families that have adopted children through the county with a therapeutic level of care have adoption assistance agreements calling for monthly payments of $1,600. I doubt whether very many would have agreements in place calling for adoption assistance payments of $1,500. What about families whose adoption assistance payments remain at or below the foster care rates even after the county makes across the board cuts?
Issue: May a county cut adoption assistance payments if they remain at or below the foster care rates appropriate for the child?
Continuing our example, suppose after cutting the therapeutic foster care rate from $1,600 to $1,500, the highest adoption assistance rate in the county is $1,400. I would argue that the county cannot make any automatic cuts in those adoption assistance payments as long as they do not exceed the appropriate foster care rate for that child.
County agencies can always propose a reduction in adoption assistance, but must do so on an individual case by case basis and provide full notice and appeal rights. The burden of proof would rest with the county agency to establish why the needs of the child and family circumstances warranted a decrease. As we have seen, budget problems are not a valid reason.
My position rests on the fact that adoption assistance agreements are individual contracts, a position supported by Region IV of the federal Administration for Children and Families and two recent federal court decisions.
On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.
Finally, in responding to an inquiries about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”
Summary
Based on federal policy issuances, court decisions and federal law itself, I feel confident in stating that county agencies cannot make automatic cuts in existing Title IV-E adoption assistance payments, unless there are across the board foster care cuts and then only in those cases where the adoption assistance payment exceeds the new foster care rate. In all other cases, where the adoption assistance payment remains at or below the existing foster care rate, the county must first propose to reduce the individual family’s payment, then show at hearing why such a reduction is justified. Under state regulations, the reduction could not take place until the appeal process had run its course. Counties would face dozens, perhaps hundreds of hearings and their chances of prevailing would not be good.
One more point deserves consideration. In a time, when the search for qualified foster parents has county agencies turning to private service providers in increasing numbers, how much can counties lower foster care rates without driving foster parents away? In tough economic times, the number of children entering foster care usually increases.
Saturday, August 1, 2009
Latest News on Budget Cuts Affecting Adoption Assistance Programs in Ohio
The following memorandums was issued by Deputy Director Sandra Holt on July 31, 2009. The memo was shared with various advocacy groups.
July 31, 2009
TO: Directors, Public Children Services Agencies
FROM: Sandra T. Holt, Deputy Director,
July 31, 2009
TO: Directors, Public Children Services Agencies
FROM: Sandra T. Holt , Deputy Director Office of Families and Children
SUBJECT: Budget Impact on Child Welfare Programs
I know many of you are eager for more information about the impacts the state fiscal year 2010-2011 budget will have on our child welfare programs, so I am writing to provide an update. As you know, the downturn in the national economy and declining state revenues will require us all to make some very difficult adjustments.
Here is how the budget will impact the following programs:
• Post Adoption Special Services Subsidy (PASSS) – Although the final budget reduced overall funding for adoption services, funding for the PASSS program has been secured, at the SFY 2009 level.
• Title IV-E Adoption Assistance (AA) – State AA reimbursement will need to be reduced. The state will provide the non-federal match for AA payments at or below $225 per month per child, beginning with the September subsidy payments. County agencies will be responsible for providing the non-federal match amount above $225.
• State Adoption Maintenance Subsidy (SAMS) - There will be no reduction in the state share for those eligible for SAMS prior to September 1, 2009. However, no new applications for SAMS will be accepted or approved on or after September 1.
• Non-Recurring Adoption Expenses – As you know, Ohio’s AA program provides a state-matched federal reimbursement to adoptive families for expenses such as adoption fees, court costs, attorney fees and other expenses directly related to the legal adoption of children with special needs. We intend to reduce this reimbursement to a maximum of $1,000 per child.
July 31, 2009
TO: Directors, Public Children Services Agencies
FROM: Sandra T. Holt, Deputy Director,
July 31, 2009
TO: Directors, Public Children Services Agencies
FROM: Sandra T. Holt , Deputy Director Office of Families and Children
SUBJECT: Budget Impact on Child Welfare Programs
I know many of you are eager for more information about the impacts the state fiscal year 2010-2011 budget will have on our child welfare programs, so I am writing to provide an update. As you know, the downturn in the national economy and declining state revenues will require us all to make some very difficult adjustments.
Here is how the budget will impact the following programs:
• Post Adoption Special Services Subsidy (PASSS) – Although the final budget reduced overall funding for adoption services, funding for the PASSS program has been secured, at the SFY 2009 level.
• Title IV-E Adoption Assistance (AA) – State AA reimbursement will need to be reduced. The state will provide the non-federal match for AA payments at or below $225 per month per child, beginning with the September subsidy payments. County agencies will be responsible for providing the non-federal match amount above $225.
• State Adoption Maintenance Subsidy (SAMS) - There will be no reduction in the state share for those eligible for SAMS prior to September 1, 2009. However, no new applications for SAMS will be accepted or approved on or after September 1.
• Non-Recurring Adoption Expenses – As you know, Ohio’s AA program provides a state-matched federal reimbursement to adoptive families for expenses such as adoption fees, court costs, attorney fees and other expenses directly related to the legal adoption of children with special needs. We intend to reduce this reimbursement to a maximum of $1,000 per child.
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