Saturday, December 10, 2016

Draft Letter Requesting an Amendment to Existing Adoption Assistance Agreement

In the previous post, we discussed the the quaint practice among a number of Ohio county children services agencies of insisting on monthly Title IV-E adoption assistance payments of $250 or less.  In fact, too many adoptive families of special needs children across the state are receiving less than $250. 

As a means of bringing attention to this reprehensible practice, we suggested that families in such situations consult with one another and flood the agency with requests for amendments to their children's current adoption assistance agreements.

The following is a generic draft letter that parents might customize to request an amendment and an increase in adoption assistance.  Remember, a request to amend and adoption assistance agreement for the purposes of increasing the monthly payment may be made at any time.


 Please consider this letter a request to discuss and negotiate __________'s, _________. __________, and ____________’s  Title IV-E adoption assistance agreement.   We are requesting a meeting or series of meetings to discuss monthly adoption payments that reflect the _____________’s current and anticipated needs in the context of our overall family situation.  As __________'s parents and the people who know them best, it is our responsibility to negotiate a plan of support that will supplement our other resources and better enable us to provide the experiences needed to foster their growth and development.   We can only accomplish that through direct discussions with you.
 As you know, the regulations and policies for negotiating amendments are the same as those pertaining to the initial adoption assistance agreement set forth in Ohio Administrative Code (OAC) Rule 5101:2-49-05, effective July 1, 2014, with one exception.  In accordance with 5101:2-49-12(B), “any request for an amendment to the AA agreement must contain newly documented special needs or circumstances of the adoptive parent(s) that were not previously subject to the current agreement.  In short, our request focuses on significant changes to our children’s needs and the impact on our family circumstances since the initial agreement was completed.
Anticipation of a Direct Discussion to Negotiate Adoption Assistance Agreements

An exchange of paperwork, or an internal agency meeting does not constitute a negotiation. The adoption assistance agreement form itself, JFS 01453, provides guidance on the kind of discussion that must take place.   Item 2 of Article IV of the Adoption Assistance Agreement “The agency has discussed the child’s existing and anticipated emotional, medical, mental, developmental or physical problems in light of the child’s family background and medical history.” Item 3 stipulates, “the agency and the adoptive parent(s) have had an extensive discussion about the child’s present and future service needs and the adoptive parent's/parents' ability to incorporate the child into the adoptive family and to meet the child’s needs.”

Federal and State Policies for Negotiation of Adoption Assistance

The above descriptions of the types of discussions that must be held to arrive at the amount of adoption assistance are supported by state and federal law.  Negotiating an amendment to adoption assistance agreements involves documentation, but it also requires more than an exchange of paperwork. Ohio Administrative Code (OAC) rule 5101:2-49-05(A) specifies that the amount of adoption assistance is determined through negotiation between the adoptive parents and county agency Paragraph (B) states.

No income eligibility test shall be used when determining the monthly AA payment. The monthly AA payment amount should combine with the adoptive parent(s) resources and circumstances of the adoptive family and shall provide for the special and anticipated needs of the child projected over an extended period of time. The child's supplemental security income (SSI) benefits shall be considered along with the adoptive parent(s) resources in the negotiation and determination of the AA payment amount.  (Emphasis added)

Federal law and OAC rule 5101:2-49-05 refer to the consideration of the needs of the child (not just special needs) when negotiating an adoption assistance agreement.  Special needs is essentially an eligibility requirement for adoption assistance.  Negotiating levels of support involves a consideration of the child’s overall needs within the broad context of the family’s circumstances.  

OAC rule 5101:2-49-05 is based upon the federal Child Welfare Policy Manual.  The authority of the federal manual as the primary source for the interpretation of adoption assistance law, is set forth in the following statement from the federal Administration for Children and Families, the section of the U.S. Department of Health and Human Services that administers the Title IV-E adoption assistance program.

The Child Welfare Policy Manual contains mandatory policies that are based in federal law and/or program regulations. It also provides interpretations of federal laws and program regulations initiated by inquiries from state and tribal child welfare agencies or ACF Regional Offices.

OAC rule 5101:2-49-05, which addresses the negotiation of adoption assistance agreements has similar language because it must conform to the relevant sections of the Child Welfare Policy Manual.  (Contact Dan Shook, Chief of adoption policy at ODJFS, for confirmation).  The newly created mediation procedure also relies on the Child Welfare Policy Manual.  (Contact Dan Shook head of adoption and foster care policy at ODJFS for confirmation.

A good description adoption assistance as a supplement to help the parents meet the child’s full range of needs may be found in Section 8.2D.4 of the Child Welfare Policy Manual, which states, 

the amount of the adoption assistance payment is determined through the discussion and negotiation process between the adoptive parents and a representative of the State agency based upon the needs of the child and the circumstances of the family. The payment that is agreed upon should combine with the parents' resources to cover the ordinary and special needs of the child projected over an extended period of time and should cover anticipated needs, e.g., child care. Anticipation and discussion of these needs are part of the negotiation of the amount of the adoption assistance payment.
Legal and Related References: Social Security Act - section 473 (a)(3)

This provision clearly indicates that adoption assistance is a supplement that, when combined with family resources, may enable the parents to provide services, activities or experiences that they might not otherwise be able to afford.

In another part of Section 8.2D.4., the Child Welfare Policy Manual refers to the importance of considering the child’s needs in the context the family’s overall circumstances. 
During the negotiation of an adoption assistance agreement, it is important to keep in mind that the circumstances of the adopting parents and the needs of the child must be considered together.  The overall ability of a singular family to incorporate an individual child into the household is the objective.  Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment. Consistency is not the goal.
Legal and Related References: Social Security Act - section 473 (a)(3)

If the object of negotiating adoption assistance is the successful integration of special needs children into a permanent, nurturing household, the key negotiation question becomes: will the additional supplemental enable the parents to meet the children’s ordinary needs and also provide the children with access to programs. activities and services that address their particular developmental, medical, behavioral or other problems?  Because adoption assistance is combined with family resources into a single family budget, there are no acceptable and unacceptable uses of adoption assistance. 
As Section 8.2D.1 of the Child Welfare Policy Manual notes,
Once the adoption assistance agreement is signed and the child is adopted, the adoptive parents are free to make decisions about expenditures on behalf of the child without further agency approval or oversight. Hence, once an adoption assistance agreement is in effect, the parents can spend the subsidy in any way they see fit to incorporate the child into their lives. Since there is no itemized list of approved expenditures for adoption assistance, the State cannot require an accounting for the expenditures.  (Emphasis added)
Legal and Related References: Social Security Act - sections 473

A Brief Statement of __________'s Needs and Our Family Circumstances

[Here add a statement discussing some of the major needs of each child’s that have arisen or changed since the initial adoption assistance agreement(s).  If you want, you can estimate expenses associated with specific needs.  Also, include changes in family circumstances that have occurred since the initial agreement(s).  The impact on family circumstances is often associated with attempts to address children’s changing needs.  At any rate, federal and state law require that the children’s current and anticipated needs must be discussed together with family circumstances as part of the negotiation.

The object of discussing and documenting family circumstances is to show the adjustments that your family must make in order to provide a stable, healthy home for a traumatized child or children, and how the accommodations have in turn limited the resources you have to carry on this crucial task.  Therefore, families may cite a range of services, activities, costs and situations in negotiating an adoption assistance agreement.  You can include proposed amounts if you choose or wait for the agency’s response to your request.  If you decide to submit specific figures, it is probably a good idea to propose amounts well above what you regard as sufficient and are willing to settle for.  Along with higher rate proposals, it is wise to say that the amounts are not necessarily your final proposal.  That you are willing to negotiate, as long as the amount is sufficient for you to meet each child’s care needs].

Discussion and negotiation may include such topics as:

  • Loss of family income which results from a parent quitting outside employment or reduces hours to provide the intensive care the children need.  This is a common phenomenon in special needs adoptions.  The reduction in family income impacts the parents' capacity to provide for the child's needs.  Parents do not expect adoption assistance to come near to the cost of raising a special needs child. They realize that adoption assistance is a supplement that will not make up for a reduction income.  Adoption assistance, when combined with family resources can make a crucial difference in providing the services, activities and other experiences the child needs.

  • Activities, clubs, camps, sports, lessons and other experiences that serve a therapeutic purpose and are designed to socialize, to develop a sense of self-worth and other essential qualities.  Such experiences are particularly important for special needs children with traumatic backgrounds and emotional/behavior problems.  Once again, adoption assistance as a supplement to family resources may make a crucial difference in the adoptive parents' ability to provide important activities that are crucial to a special needs child's healthy growth and development.  You can include tutoring and other needs

  • Therapies and services that may not be covered by family health insurance or Medicaid. Many therapists are not qualified to treat Reactive Attachment disorder and other serious emotional disorders found in adopted children.

  • Transportation costs - Adoptive parents often must travel long distances to find qualified providers.

  • Child care costs - In some cases, only trained providers can provide child care for special needs adopted children with severe emotional/behavior problems.

Note: You don't have to go into great detail.  If you want to attach an addendum with more detail then you can do that]

We recognize that adoption assistance will not cover all of  __________'s and ________’s needs and expenses.  Rather, it is a supplement designed to enable us to continue to make the sacrifices needed to ensure that they grow up a healthy and happy child in a permanent family.   

We stand willing to negotiate with Stark County in hopes that an agreement can be reached. We know that federal funding covers 62.32%. of individual adoption assistance payments up to the child’s foster care payment rate.