Wednesday, April 6, 2011

Clarification: OAC rule 5101:2-49-05 Pertaining to the Negotiation of Title IV-E Adoption Assistance Agreements and the Amount of Monthly Payment

Until the language is changed, the phrase “operated by the PCSA”, should refer to all foster homes in which the PCSA places children, including those homes provided by caregivers through contracts with private foster care service agencies. This has been federal and state policy throughout the history of the Title IV-E adoption assistance program. There is evidence that some county agency’s are misusing the phrase “operated by the PCSA” in doing so are in violation of federal and state law. There may be some hearings and administrative appeals in the near future in which this misinterpretation by county agencies threatens adoption assistance to special needs children with extraordinary levels of care. Background Provisions on the amount of Title IV-E adoption assistance in OAC 5101:2-49-05 refer to the limits of federal financial participation, which is the child's appropriate foster home rate, that is the level of support the child receives or would receive in a foster home suitable to the child's level of care. (See federal law at 42 U.S.C. 673 and Section 8.2D.4 of the Child Welfare Policy Manual. Federal financial participation includes the federal share of payments to foster homes in which a child is receiving a relatively high, specialized foster payment rate because he or she has been deemed by the county agency to require a more intensive level of care. Federal financial participation is available at the same rate to homes provided under contract with private service providers as well as "agency" homes. The federal financial participation rate functions as the practical, de facto ceiling on a child's Title IV-E assistance payment because, in any payment beyond that amount, the state or county would incur 100% of the cost. Significance for Negotiation of Adoption Assistance Payments The negotiation of adoption assistance is affected by the maximum rate of federal financial participation, which is the actual amount paid for the care of the child in a foster home or would be paid if the child were placed in a foster home suitable to their level of care. This means that a if a child is receiving $1,300 per month in a specialized foster home provided through a contract with a private foster care network, then federal financial participation is available for adoption assistance payments of up to $1,300 per month. The Ohio Department of Job and Family Services (ODJFS) confirmed this view in an the following e-mail of April 1, 2011.

Hello Tim: Ohio has always interpreted this rule reference to mean any home that is operated or contracted by the PCSA. In other words the rate that is to be used is the rate that is paid to the foster home. If the home is being operated by a private agency then the administrative rate cannot be used in the calculation for AA. The Title IV-E rules are up for review and this section as for others has been clarified due to comments made previously. Hopefully you will await the rule changes that are coming out and then comment. Should there be a specific issue you can send me the issue and I will be able to help assist in the resolution.
County agencies may not: 1. Unilaterally Limit the amount of adoption assistance to the rate paid to an "agency" home in which the child does not reside. 2. Unilaterally limit the amount of adoption assistance to a "level of care" calculation or formula in if the level of care is not the same as the monthly payment actually being made to the foster home. Unlike some other states, Ohio has no statewide Title IV-E adoption assistance rate schedules. As a consequence, each adoption assistance negotiation is child specific. Each negotiation must be based upon the specific needs of the child and individual circumstances of the family. Any county that attempts to set its own maximum adoption assistance rates which are lower than the child's actual foster care rate violates federal and state law in a number of respects, including the following: a. By establishing a maximum payment amount, the county is refusing to negotiate an individualized agreement with the adoptive parents. b. A county maximum rate based upon "agency" foster home rates or "level of care" standard other than what the child was actually receiving in foster care fails to discuss and negotiate an adoption assistance based upon the special needs of the child and circumstances of the individual family. There is no legal basis for an agency to take the arbitrary position in the case of therapeutic foster home in which the child was receiving $1,500 per month that "we will not make an adoption assistance payment of more than $800 per month." To do so ignores the careful consideration the individual child's needs and specific family circumstances required by federal and state law. c. The absence of state-wide adoption assistance rate schedules in Ohio prohibits county agencies from establishing their own categorical rate schedules that ignore the individual needs of the child and specific circumstances of the adoptive family.