Chapter 3, Hearings and Appeals; Part 3. Review: What are some basic things to consider when pursuing a state administrative hearing?

Please Excuse the Long delay in postings. We continue with Chapter 3,Hearings and Appeals

When faced with an adverse agency decision pertaining to adoption assistance, you should seriously consider a request for mediation.  If mediation fails, it is advisable to pursue an appeal through an administrative state hearing.  The following are some practical steps to take when faced with the prospect of pursuing an administrative hearing:

• Important!!! Follow the time frames for requesting an administrative hearing.  That information should be contained in the agency’s written denial of your request for adoption assistance.  If it is not, contact the Bureau of State Hearings at the Ohio Department of Job and Family Services.

Form JFS 04059 "Explanation of State Hearing Procedures" states that adoptive parents have 90 days to request a hearing. Ninety days has been the traditional time frame.  In cases where an agency proposes to terminate adoption assistance, the adoptive parent has only 15 days to request a hearing.  In all other cases, parents can rely on the time frame for requesting a hearing in the denial notice.  When in doubt, contact Elizabeth Foster, Chief Hearing Officer at 614-728-8416 or by e-mail at Elizabeth.Foster@jfs.ohio.gov.

• Federal and state hearing regulations require that families be given “adequate notice” which, among other things, includes the specific reason for the proposed action by the agency and the relevant laws or regulations on which it is based.  If the agency fails to provide adequate notice, contact it and inform the Ohio Department of Job and Family Services (ODJFS), Bureau of State Hearings.

• Obtain the state adoption assistance regulations from the ODJFS Web Site and the federal policy in the online Child Welfare Policy Manual.  The State Title IV-E adoption assistance rules are in chapter 5101:2-49-.   Google Ohio Department of Job and Family Services or go to jfs.ohio.gov.  Click on M under Index of Services. Click on Manuals (e-manuals).  Click on Family, Children and Adult Services Manual.  Scroll down to the rules under 5101:2-49-.   Hearing rules may be found in the e-manual section under Legal Services.  Click on State Hearings Manual.  Click on State Hearings Policy.

For federal adoption assistance policy, google Child Welfare Policy Manual.  Click on Title IV-E.  Go to Section 8.2 Adoption Assistance Program.  Negotiation of adoption assistance is discussed in Section 8.2D.4 “Rates.”

 

• Contact the agency to make arrangements to see and acquire relevant documents and to determine the basis for the agency’s proposed denial of benefits.  If the agency refuses, contact the Bureau of State Hearings.  Federal and state hearing regulations stipulate that the family or its representative shall have “adequate opportunity” to “examine the contents of his case file and all documents and records to be used by the agency at the hearing at a reasonable time before the date of the hearing as well as during the hearing; . . .”   If the agency will not comply, contact the ODJFS Bureau of State Hearings.  

•  The Bureau of State Hearings usually has some  subpoena authority, but is often reluctant to use it.  The Hearings Bureau can inform the county agency that it must share non-confidential records with adoptive parent appellants.  Hearing rules at 5101:6-5-01(E)(5) specify,  “confidential material protected from release, and other documents or records that the individual will not have an opportunity to contest or challenge, shall not be presented at the hearing nor affect the hearing officer's decision.”

• Insist on sufficient time to present your case and to refute testimony presented by the agency.   Federal and state hearing regulations afford you the right to “ (v) advance any arguments without undue interference; and (vi) to question or refute any testimony or evidence, including opportunity to confront and cross‑examine adverse witnesses.”

Once the basis of the agency’s written denial of eligibility or benefits is identified, you can begin to prepare an argument against the agency’s position.  At that point, it is a good idea to contact an advocacy group to consult with your case.  A person or group with experience in administrative appeals can help you to determine what kind of evidence you need to gather.

Taking steps to contest an agency decision often invests families with a sense of empowerment whether they ultimately win or lose. Launching an appeal is not confusing if you take it a step at a time, particularly if you walk through the process with a more experienced family or advocate. 

What is the next step in the appeal process if the hearing decision "overrules" the adoptive parents' argument and denies their request for adoption assistance?

 If an adoptive parent disagrees with the hearing decision, he or she may request an administrative appeal.  Administrative appeals are not additional hearings, but reviews of the initial hearing decision. In Ohio, the review is conducted by an attorney in the Office of Legal Services at ODJFS. (OAC 5101:6-8-01).  Notice of the right to and the method of obtaining an administrative appeal are included on the state hearing "state hearing decision," JFS 04005.

What is the procedure for requesting an administrative appeal?

The hearing decision (JFS 04005) includes a section that entitled “Notice to Appellant” that instructs the adoptive parent on how to request an administrative appeal.  It reads as follows:

This is the official report of your hearing and is to inform you of the decision and order in your case.  All papers and materials introduced at the hearing or otherwise filed in the proceeding make up the hearing record.  The hearing record will be available for examination at the local agency during normal office hours.  

If you believe that the state hearing decision is wrong, you may request an administrative appeal by writing to: Ohio Department of Job and Family Services, Office of Legal Services, 30 East Broad Street, 31^st Floor Columbus, Ohio 43266-0423.  Your request should include a copy of this hearing decision and an explanation of why you think it is wrong.  The department will respond to your request quickly so any information, arguments, or documents you want considered must be sent with your request.  Your written request must be received by the Office of Legal Services with 15 calendar days from the date this decision is issued.  (If the 15^th day falls on a weekend or holiday, this deadline is extended to the next work day.

During the 15 day administrative appeal period, you may request a free copy of the tape recording of the hearing by contacting the district hearings section.  If you want information on free legal services but don’t know the number of your local legal aid office, you can call the Ohio State Legal Services Association, toll free, at 1-800-589-5888, for the local number. 

Should the adoptive parent submit an argument along with the request for an administrative appeal?  

Yes, to support their appeal, it is advisable for adoptive parents to include information, documentation and arguments such as: 

1. A written statement pointing out errors of fact, law/regulations  or policy in the hearing decision;

2. Key points that were overlooked;

3. Procedural problems such as not being allowed sufficient time to present the case or present testimony.

4. Exhibits such as documents, letters from doctors, therapists or other professionals familiar with the child; federal policy statements from the Child Welfare Policy Manual; previous hearing decisions; court cases.  Exhibits are presented to support the written statement pointing out errors and omissions in the hearing decisions.

 Generally speaking, including a detailed rebuttal of the hearing decision is a good idea because it becomes part of the hearing record and therefore part of any further appeals.  The argument against the hearing decision is not intended to introduce new evidence, but to point out mistakes.  The adoptive parent may include key documents or point to sections of the taped hearing record to support his or her case. 

What records must be kept by ODJFS' Office of Legal Services and the Bureau of State Hearings?

The administrative appeal decision, together with all requests, documents, and correspondence filed in the proceeding, make up the exclusive administrative appeal hearing record.  The record must  be compiled and certified by the ODJFS’ Office of Legal Services and maintained by the ODJFS Bureau of State Hearings in accordance with applicable record retention requirements and made available for review by the individual and authorized representative.

ODJFS’ Office of Legal Services must maintain a library of all administrative appeal decisions. The decisions shall be available for public inspection and copying, subject to applicable disclosure safeguards.

What is the next step in the appeals process if the administrative review "sustains" the hearing decision and decides against the adoptive parents?

The next step in the appeals process in Ohio is to file for a judicial review in the county court of common pleas.  The court review involves a judge’s consideration of the issues and arguments that arose from the hearing.  Sometimes courts will accept oral arguments as part of a judicial review.  Judicial reviews, however, primarily function as courts of appeals that review the initial hearing and administrative appeal decisions.    

For this reason, it is important to present all the essential arguments and documentation at the original hearing so that they will become part of the record that is reviewed.  Parents are usually permitted to file depositions with the court outlining the errors of fact and law and the arguments for adoption assistance on behalf of their request for judicial review.  The Clerk of Court or Magistrate can help explain the procedures for judicial review.

The hearing itself and the administrative review are available to the appellants at no cost.  Judicial reviews generally require modest filing fees.  Adoptive families usually secure legal counsel to file for the judicial review and to represent them before the court if they decide to carry their appeal to this step in the administrative hearing process or take further legal action.  Attorneys file the necessary motions with the court and submit briefs on behalf of the parents and children.  If a settlement is possible, the attorney negotiates on behalf of the adoptive family. 

It is often difficult to find an attorney with expertise in adoption assistance.  Contacting experienced adoptive families or support groups may help to identify an attorney with some knowledge and experience.  Collaboration between an experienced advocate and an attorney can lead to a more effective appeal and save some time and money. 

In what county do adoptive parents file for judicial review?

Adoptive parents file for judicial review in their county of residence. OAC 5101:6-9-01(A)(2).  Parents who live outside Ohio must file with the Court of Common Pleas in Franklin County. 

What is the time limit for requesting a judicial review?

The time limit for filing for judicial review is no later than 30 days after the ODJFS, Office of Legal Services mails the administrative appeals decision.  The court may extend the deadline when good cause is shown.  OAC 5101:6-9-01(A)(4)(b).  The adoptive parent, or usually the adoptive parent’s attorney must also mail a notice of appeal to the ODJFS, Office of Legal Services. 

Written arguments or briefs by the opposing parties are not due within the 30 day filing period.  Through the court, a schedule for submitting briefs is established. 



Who is the opposing party when the appeal reaches the judicial review stage?

When the appeal reaches the judicial review stage, the ODJFS is the opposing party and the state agency is represented by an attorney from the Ohio Attorney General's Office.