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. (Dan.Shook@jfs.ohio.gov)   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).

Level Care Assessment Tools in Ohio; Some News and Ideas

In the last post we discussed use of level of care assessment instruments such as the Children and Adolescents Needs and Strengths (CANS) tools to assess foster care payment rates in several states.  Dan Shook, the policy chief of foster care and adoption assistance at ODJFS, informed me that in 2014, House Bill (H.B.) 452 funded a level of care pilot program.  

Specifically,

The bill creates the Child Placement Level of Care Tool Pilot Program and requires the Ohio Department of Job and Family Services (ODJFS) to implement and oversee use of the pilot program. The bill requires that the pilot program be implemented in up to ten counties selected by the Department and must include the county and at least one private child placing agency or private noncustodial agency.

According to Mr. Shook, the pilot assessment tool is being created from the CANS instruments at the PRAED Foundation web site at http://www.praedfoundation.org/.  On February 23, 2015, he told me, 

. . . . the “pilot will begin within the next month and last up to 18 months.  The law also requires an evaluation of the pilot.  After this is completed, I am hopeful that Ohio will implement a statewide standard LOC system for placement. 

At his point, we don’t know exactly how a level of care instrument, once adopted might be used to evaluate children’s foster care payment rates across Ohio.  Knowing that a pilot program is in the works, however, raises some interesting possibilities.  In addition to contacting Mr. Shook for information about the pilot, foster and pre-adoptive parents might consider the following tactics while the program is being implemented.  Mr. Shook can be reached at Dan.Shook@jfs.ohio.gov 

The Use of Existing Level of Care Instruments to Evaluate Foster Care Payments

In practice, there are no uniform statewide procedures for determining levels of care in Ohio.  This means, there are no generally recognized procedures for determining if a child’s foster care payment rate is consistent with his or her care needs.  My impression, however, is that some private foster care providers and perhaps some public agencies, either employ standardized level of care assessment instruments or recognize their validity.  If that is the case, foster and pre adoptive parents should try and determine what methods or tools are being used to classify their children’s level of care and foster care payment rates.  Verifying that the child’s foster care payment is consistent with his or her level of care is important, in-so-much as the foster care payment rate establishes the maximum amount of adoption assistance which may be negotiated. 

Imagine a child receives a foster care payment of $700 per month. The parents believe that the child should receive a specialized foster care payment due to changes in the child’s care needs. The specialized care rates might be defined by Levels of care needs or by terms such a therapeutic care.  The parents ask the county agency for a level of care assessment.  They copy Dan Shook on this request, mentioning they are aware of the state’s plans to pilot a CANS assessment tool.  They also ask Dan Shook to help them reach agreement on the instrument that will be used and a neutral professional to apply it until the state’s assessment procedure is in place.  If it is acceptable to the parents, the most obvious instrument may be one employed by a private foster care provider in the county.

 

Suppose the assessment confirms that the child’s level of care is consistent with Level 4 care needs. Children with Level 4 care needs receive monthly foster care payments of $1,000 per month. The parents have grounds for requesting an increase in their child’s foster care payment rate.  Will this work?  If increasing numbers of foster parents request level of care assessments and inform Dan Shook, it might increase momentum toward the use of level of care assessments to evaluate children’s foster care payments.

Level of Care Assessments and the Negotiation of Adoption Assistance.

Parents involved in difficult adoption assistance negotiations with a county agency might request the use of a level of care assessment tool to support their argument that the family’s circumstances and the child’s current and anticipated needs warrant a certain amount of adoption assistance.  An assessment does not replace negotiations but might be used to show:

·       The child’s current foster care rate is too low, or

·       The agency’s proposal for an adoption assistance payment is too far below the child’s foster care rate.  Suppose the child’s foster care payment rate is $800 per month. The agency has proposed an adoption assistance payment of $400 per month.  A level of care assessment could help support that parents’ contention that the child’s needs and family circumstances merit an adoption assistance payment at or near the child’s foster care payment rate.

Level of Care Assessments and Mediation

In previous posts, we have discussed the possible use of the mediation process as a tactic when negotiations are obviously stalled and the parents believe that the agency’s offer of adoption assistance is inadequate.  Even if the actual mediation process leaves a lot to be desired, the parents’ authority to request mediation, at the very least, threatens to prolong the negotiation.  The prospect of going through the mediation process may cause the agency to reconsider its adoption assistance proposal.

While there are no guarantees, it does appear that informed parents, determined to go through the mediation process has helped in a few cases with which I am familiar. The agency well knows that following a failed mediation is the opportunity for the parents to request a state administrative hearing, which adds more weeks to the case.  The outcome of the hearing also may be an order to resume negotiations.

Suppose, in addition to mediation, the parents also request a level of care assessment as a means of “objectively” helping reach a settlement in the adoption assistance negotiation.  Once again, it might be helpful to contact Mr. Shook and inform him of this idea.  The request for a level of care assessment might support the parents’ case in the mediation.  Asking for an assessment would extend the mediation process and perhaps increase the pressure on the agency to each an adoption assistance agreement that is closer to the amount sought by the parents. 

According to an Indiana policy letter dated January 14, 2013, “CANS reassessments are required every 180 days and at critical case junctures.”  Foster parents may not only request a CANS review, including situations in which there are “supervision or behavioral concerns that are not adequately addressed by the CANS.”  If the assessment indicates a “higher category of supervision,” the foster care rates will increase. 

For information about CANS in Wisconsin, see http://www.wafca.org/CANS.htm.  You can find CANS information applicable to individual states.  Google the name of the state and CANS or the name of the state and CANS forms.  Massachusetts CANS forms for example, brings you to  http://www.mass.gov/eohhs/gov/commissions-and-initiatives/cbhi/child-and-adolescent-needs-and-strengths-cans/cans-forms.html

Minnesota has developed the Minnesota Assessment of Parenting for Children and Youth tool (MAPCY), which will soon be in use throughout the state to determine foster care payment rates on an ongoing basis.  MAPCY includes an emphasis on the amount of care and supervision that the parents need to provide and obtain for their child.  The inclusion of the scope of parental responsibilities captures elements of family circumstances.  Interested parties may contact Josh Kroll at NACAC at 651-644-3036.