Friday, April 3, 2015

Chapter 3, Hearings and Appeals; Part 2; Basic Rights

The provisions of Title 45 of the Code of Federal Regulations at CFR 205.10 apply to adopting and adoptive families as well as to other participants in federal programs. 

45 CFR 205.10 (5) states that
An opportunity for a hearing shall be granted to any applicant who requests a hearing because his or her claim for financial assistance (including a request for supplemental payments under Secs. 233.23 and 233.27) is denied, or is not acted upon with reasonable promptness, and to any recipient who is aggrieved by any agency action resulting in suspension, reduction, discontinuance, or termination of assistance, or determination that a protective, vendor, or two‑party payment should be made or continued.

Ohio hearing regulations at OAC 5101:6  have similar provisions, implementing the federal due process guidelines.  Note: For access to Ohio hearing regulations go to the ODJFS web site.  Click on Adoption, then click on Site Index and go to Manuals (e-manuals).

  • Click on link State Hearings Manual under Legal Services on the right side of the screen.
  • Click on State Hearings Policy.
  • Scroll down Table of Contents at the top of the page to find the appropriate rule. 
Note: Click on links in the text of this post to gain access to the rule or document cited.

What is the legal foundation for hearing rights?

Hearing rights for applicants and participants in federal entitlement programs, including Title IV-E Adoption Assistance, were established in 1970 by the United States Supreme Court in the case of

Goldberg v. Kelly, 397 U.S. 254 (1970).

What kinds of decisions pertaining to Title IV-E Adoption Assistance may be appealed?

All of the following may be appealed when the application or request is denied by the PCSA (county agency):

  • A denial of a child’s eligibility of adoption assistance.
  • A request for an increase in adoption assistance before finalization.
  • A request for a modification to an existing adoption assistance agreement after finalization to increase existing levels of support.
  • A denial of an application for adoption assistance submitted after a final decree of adoption.
  • The denial of a request for nonrecurring adoption expenses associated with the adoption of a special needs child. 
  • When an application for assistance has not been acted upon with reasonable promptness

What is the criterion for "reasonable promptness" in adoption assistance applications

OAC 5101:2-49-01(G) provides: the county agency (PCSA) must “approve or deny the application within thirty working days after a completed AA application and all required documentation are provided to the PCSA."

How must denials of assistance be communicated to adoptive parents?

Ohio regulations on the denial of assistance reflect the provisions for adequate notice in Title 45 of the Code of Federal Regulations at CFR 205.10 (a)(4).  The Ohio Administrative Code (OAC) at 5101:6-2-03 specifies that notice of a denial of benefits must be communicated in writing and

  • shall contain a clear and understandable statement of the action the agency has taken and the reasons for it, cite the applicable regulations, explain the individual's right to and the method of obtaining a county conference and a state hearing, contain the name and telephone number of the person to contact for more information and contain a telephone number to call about free legal services.

  • be issued on a "Notice of Denial of Your Application for Assistance," (JFS 07334 form), or its computer-generated equivalent, shall be used.

Adoptive parents rely on adequate notice to know what issues they must address in the hearing.

In Ohio, is there any difference between a “state hearing” and administrative hearing?

No, in Ohio, the term “state hearing” is used.  In other states, the term administrative or “fair” hearing is employed.  The terms are synonymous.

How does an adoptive parent request an administrative hearing in Ohio?

 OAC 5101:6-3-02 defines a request as a clear oral or written expression by the applicant or an authorized representative,
to the effect that he or she wishes to appeal a decision or wants the opportunity to present his or her case to a higher authority.  The request may be either made oral orally or submitted written or electronically .
Contact information is provided to the applicant as part of the written denial.  The request may be made to the Ohio Department of Job and Family Services’ Bureau of State Hearings in Columbus either in writing or by fax to the number provided on the form.

What is the time limit for requesting a hearing?

The adoptive parent has ninety days from the day after the date on which the notice of denial is mailed to request a hearing.  For example, if the notice of denial was mailed in April 20, the adoptive parent would have ninety days from April 21 to request a hearing. OAC 5101:6-3-02(B) 

What is the time limit for issuing a hearing decision?

According to OAC 5101:6-7-01(B) (1) hearing decisions must be issued within seventy days from the date of the hearing request.   In reality, hearing decisions are often issued after this time limit.

Are hearings conducted in person or via telephone?

The final decision rests with the adoptive parents (appellants).  Federal hearing regulations at 45 CFR 205.10(a) (2) specify that states must provide the opportunity for face to face hearings.  The option of hearings by phone may be exercised if the parent agrees.  

Author's Note: Face to Face and Telephone Hearings 

 In Ohio, a telephone hearing will be scheduled unless the appellant specifically requests an in person hearing.  

Is there any advantage to attending the hearing in person? 

This is a hard question to answer because each case has so many variables, including: the hearing officer’s knowledge of the adoption assistance program, the nature of the issue in dispute, and the attitude and actions of the county agency representatives.  Appearing in person may serve to remind the parties what is at stake in the life of a child with serious emotional of behavioral problems.  On the other hand, parents can and often do present successful cases via telephone.  All in all, parents should not worry about being at a disadvantage if attending the hearing in person is too inconvenient.