Wednesday, March 18, 2015

Chapter 3: Appeals and Hearings; A Preliminary Note

We now begin Chapter 3, which addresses appeals and state administrative hearings.  In earlier posts, I have discussed the use of the mediation process as a possible strategy when negotiations for Title IV-E Adoption Assistance are hopelessly deadlocked. See the previous posts.

I really don't know if the mediation process itself is effective in resolving disputes over the amount of assistance, but to the extent that it puts pressure on the agency to increase its proposed adoption assistance payment to an acceptable level, it may be worth considering.

Mediation is available on request to adoptive parents, but only on issues pertaining to the negotiation of adoption assistance.  The next step, if the parties cannot agree, is the state administrative hearing.

Before we walk you through the hearing process, it is worth noting that hearings on the amount of assistance are often the most difficult to resolve.  Because adoption assistance is negotiated, hearing officers rarely determine a specific amount of assistance based upon the documentation of the child's needs and family circumstances.

Rather, they focus on procedural issues, including:

  • Did the agency negotiate according to state regulations?

  • Did the agency consider the full range of needs (current and anticipated; ordinary and specialized)? Did the agency, instead, attempt to impose its own narrow standards about what costs, services and activities could be considered and what were invalid?

Did the agency fail to consider the overall family circumstances along with the the child's needs. Family circumstances is a broad term involving the incorporation of the child into a permanent, nurturing family.  What adjustments and sacrifices must the parents make to meet the child's needs?  Must one parent give up outside employment?  What is the impact on the family resources brought about by meeting the child's various care needs and fostering his or her physical, social and emotional growth?  What amount of assistance is a reasonable supplement to the the family's resources to enable the parents to provide activities, services and experiences that their child needs to flourish?

Parents have a reasonably good chance of having their appeal sustained by the hearing decision.  The outcome of a winning decisions, however, is usually an order to resume negotiations.  The new negotiations may convince the agency to increase its adoption assistance proposal to an adequate amount.  If the contending parents are also the child's foster parents, they may continue to receive foster care payments until an adoption assistance agreement is reached or the adoption is finalized, whichever occurs first.

If the agency remains intransigent, ODJFS currently, has no procedure for resolving the impasse. The parents should hold off on finalizing the adoption as long as possible and contact Dan Shook, the adoption and foster care policy chief at ODJFS. (   Tell Mr. Shook that you won the hearing and want to finalize, but the agency refuses to comply with the hearing decision.  Attach a copy copy of the hearing decision and ask if you can speak with him by phone.  Ask him to intervene so you can move forward with the adoption with a sufficient amount of support for the child.

 In summary, do not hesitate to use the hearing process if necessary. Sometimes, the threat of a hearing after a lengthy negotiation will cause the county to reconsider.  Also, as noted, parents have a reasonable chance of winning.  When it comes to a choice of accepting an obviously insufficient amount of adoption assistance or challenging the agency through a hearing, you really have no choice, but to pursue an appeal.

My point in introducing this wrinkle before tackling the general topic of appeals and hearings is to suggest that if parents can pressure the agency to negotiate an adequate adoption assistance agreement before resorting to a hearing, so much the better,  A possible strategy is to communicate a quiet, patient determination to negotiate an adoption assistance payment that is in the child's best interest by

  • Showing the agency that you are very well informed about the existing laws and policies.

  • Reiterating again and again your willingness to negotiate because, as the child's parents you have no choice.

  • Telling the agency that you would prefer to reach an agreement in the best interest of the child, without resorting to mediation.  At the same time, indicate that you are willing to go to mediation if necessary.  Also, bring up the possibility of asking for a level of care assessment prior to or during the mediation to support your position regarding the child's needs and family circumstances.  (See previous post).