Friday, April 9, 2010

Some County Trends in Negotiation of Adoption Assistance Agreements Appear Contrary to Federal and State Law

Instead of negotiating of Title IV-E adoption assistance, some Ohio county agencies appear to have adopted the practice of requesting specific information from the adoptive family and then deciding, without further discussion, how much monthly support the adopted child will receive. Such practices are contrary to federal and state law, because:

1. Negotiation is required. By definition involves active participation by both parties toward a common goal (adoption assistance agreements), not a unilateral determination by an agency.

2. The information requested by the agency often pre-selects the issues that will be considered and rejected in determining the amount of adoption assistance

The requirement to negotiate adoption assistance agreements

Ohio county agencies are obliged to negotiate an adoption assistance agreement with adopting parents based on a consideration of the child’s needs and family circumstances in accordance with OAC rule 5101:2-49-05.

Item 3, Article IV of the JFS 01453 Adoption Assistance Agreement form sets forth the terms of negotiation based on federal and Ohio law. Item 3 IV of the agreement form states:

The agency and the adoptive parent(s) have had an extensive discussion about the
child’s present and future service needs and [overall family circumstances] the
adoptive parent's/parents' ability to incorporate the child into the adoptive
family and to meet the child’s needs.

Paragraph (G) of newly revised Ohio adoption assistance rule OAC 5101:2-49-01(G) provides:

A face-to-face interview with the adoptive parent(s) is required at application.
If the adoptive parent(s) resides out-of-state or in another county which is a
considerable distance from the agency, a face-to-face interview is not required.
The PCSA may ask the public child service agency (CSA) in the other county or
state to assist with the determination of eligibility or continuing eligibility.

Submitting information is a prelude to negotiation, not the negotiation itself. By any reasonable definition, negotiation involves active participation between the parties toward a common goal (an adoption assistance agreement), not a unilateral determination by an agency.

Procedures and criteria for negotiating adoption assistance agreements

We recently highlighted two 2009 Ohio administrative appeal decisions rendered clarified and explained what is involved in consideration of the child’s needs and family circumstances. Both cited the language below from Section 8.2D.4 of the Child Welfare Policy Manual in upholding the adoptive parents’ appeals. Administrative appeal decisions are reviews of state administrative hearings by ODJFS legal services staff. [See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), June 23, 2009 and Docket Number: AA-4651, Appeal No(s) 1499112, December 3, 2009.]

Section 8.2D.4 of the federal Child Welfare Policy Manual as the ODJFS administrative appeal decisions point out, provides:

Title IV-E adoption assistance is not based upon a standard schedule of itemized
needs and countable income. Instead, the amount of the adoption assistance
payment is determined through the discussion and negotiation process between
the adoptive parents and a representative of the State agency based upon the
needs of the child and the circumstances of the family. The payment that is
agreed upon should combine with the parents' resources to cover the ordinary
and special needs of the child projected over an extended period of time and
should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.

The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to 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. (Emphasis added).

The Administrative Appeal Decisions were signed by the Head of the ODJFS Office of Legal Services as well as the reviewer

In many cases agencies request information about a limited number of specific expenses that exclude significant areas of concern to the adoptive family, such as lost income resulting from remaining at home to provide intensive care for a special needs child, or the cost of anticipated care needs, treatments or important activities. As discussed in previous posts, Erie County developed a manual several years ago and its principles, though out of compliance with federal and state law have been embraced by other Ohio county agencies.

These county agencies ask for information with some key assumptions in mind:

1. The agency refuses to recognize any circumstance or expenses that might be embraced by a non-adoptive family. For example, in spite of the reference to family circumstances, the agency refuses to include loss of income resulting from a parent giving up a job to care for a special needs child as a legitimate consideration in the negotiation of adoption assistance agreement. Adoptive parents are well aware that they will never negotiate an adoption assistance agreement that matches the lost income from a job, but it is certainly legitimate to view adoption assistance as a supplement which combined with the family’s primary resources will enable the parents to continue to make sacrifices that benefit their child. One would think that an agency would actively seek out parents willing to give up a career to care for a special needs child make every effort to find adequate support for them.

2. In spite of language to the contrary in the federal Child Welfare Policy Manual and aforementioned Ohio administrative appeal decisions, the county agency refuses to recognize expenses related to ordinary or anticipated needs. Activities benefiting a child’s social and psychological development, daily expenses associated with raising a child, anything that does not pertain directly to the child’s special needs condition may be rejected.

3. The agency insists on determining what itemized expenses were “acceptable” and “unacceptable” and what portion of the activity or the expense the county was willing to approve. This position in inconsistent with the requirement to negotiate in state and federal law.

No one is more aware of their circumstances and the child’s future needs and expenses than the adopting parents. Dozens of conversations with adoptive parents have demonstrated that their concerns about the need for adoption assistance fall quite neatly into the child’s needs and family circumstances. In responding to an agency’s request for information, adopting parents should include factors, situations and expenses with which they are concerned, including anticipated as well as current needs. Parents need not submit exact cost figures, the overall needs and expenses will always be much higher than the monthly adoption assistance. Rather, the parents should discuss general areas of concern and approximate expenses that are tied to those areas of concern. The idea is to provide a relatively clear picture of the family’s situation as it attempts to incorporate a child into a stable, loving, permanent home.

Parents should respond to an agency’s request for information in a manner that reflects their own view of what they are facing and what they will need. They can, for example, answer the agency’s questions and add their own concerns as an addendum to the agency questionnaire. For example:

Dear _______,

As you are aware, federal and state laws pertaining to negotiation of Title IV-E adoption assistance agreements require that the parties consider the child’s ordinary and special needs, both current and anticipated as well as our overall family circumstances. We have attempted to respond to your questions, but find them too limited. They do not adequately encompass __________’s care needs or take account of the adjustments in our family situation related to providing a permanent, stable home for (him/her).

Accordingly, we are presenting the following categories of activities and expenses to give you a clearer picture of the challenges that lay ahead. We are aware that the total expenses we are including, greatly exceed any adoption assistance payment we may negotiate. We present the following comprehensive picture of expenses _______’s needs and our family circumstances in hopes of creating a common context for negotiation. We fully accept the proposition that raising a special needs child will require considerable sacrifice on our part. Our goal is to negotiate an adoption assistance that, when combined with our other resources, will enable us to continue the sacrifices needed to provide a permanent family for __________.

NOTE: Here discuss expenses that are significant concerns to you. You know your needs and situation better than anyone. If you are able, include approximate cost figures, but you do need to be exact. Negotiation should not consist in merely adding up the costs. Let the agency know you do not expect the adoption assistance to cover most of the costs involved in raising a special needs child. Rather, Title IV-E adoption assistance is intended to provide a supplement to family resources that will you to continue to make the sacrifices necessary to provide a stable, loving and permanent home. For example:

Wife quits job to provide care for child recommended by health care provider.
Loss of $35,000 per year in family income.

Activities, lessons needed to improve social skills, confidence, and emotional problems. Approximate cost.

Food, shelter, clothing, especially of a specialized nature.

Anticipated treatments for medical or mental health issues.

Treatments/therapy not covered by insurance or Medicaid.

Childcare/respite appropriate to the child’s needs.

Necessity to expand home, buy a new car, move to a new home in order to accommodate an additional child.

NOTE: Rely on your experience intuition to include costs that are significant concerns to you. No one knows your situation better than you. In my discussions about the amount of adoption assistance they need, adoptive parents’ concerns inevitably fall under children’s needs and family circumstances. So trust your judgment.

You can answer the agencies questions, but include what you feel is important. Do not get trapped into a negotiation that considers a limited number of itemized costs selected by the agency which do not reflect your actual concerns.