Adoption Subsidy & Policy Blog

2012 Ohio Federal, State and County Financial Participation Rates in Title IV-E Adoption Assistance

2012-01-27T19:23:00.009-05:00

Ohio Department of Job and and Family Services' Family and Children and Adult Services Procedure Letter (FCASPL) 224, issued on October 14, 2011, stated that effective October 1, 2011 through September 30, 2012, the federal financial participation (FFP) rate for both Title IV-E adoption assistance and Title IV-foster care maintenance will be 64.15%.

The State of Ohio contributes the non federal matching share of adoption assistance payments up to a maximum of $250 per month. Without negotiated participation by county agencies, Ohio's adoption assistance rates would be among the very lowest in the country.

County agencies must provide the non federal matching funds at the rate of 35.85% for every dollar of adoption assistance over $250 up to the child's monthly foster home payment. For this reason, the negotiation process is of crucial importance to adoptive parents.

In my experience, adoptive parents who are willing to inform themselves and to take an active role in negotiating adoption assistance agreements always obtain a better support plan for their special needs children than parents who passively accept an agency proposal which they feel is inadequate. Here are two examples of Ohio's 2012 federal, state and county financial participation rates for Title IV-E adoption assistance payments.

Total Monthly Adoption Assistance Payment:$500
First $250

Federal Share: $160,37 (64.15% of $250); State Share: $89.63.78 (35.85%% of
$250); County 0

Remaining $250

Federal Share: $160,37 (64.15% of $250); State Share: 0; County Share: $89.63.78 (35.85%% of $250)

Totals: $500

Federal Share:$318.45 63.69% of $500 State: $89.63.78 of $500; County $89.63 of $500

Total Monthly Adoption Assistance Payment:$1,000

First $250

Federal Share: $160,37 (64.15% of $250); State Share: $89.63.78 (35.85%% of
$250); County Share: 0

Remaining $750

Federal Share: $481.12 (64.15% of $750);State Share: 0; County Share: :$268.88
(35.85% of $750)

Totals: $1,000

Federal Share: $641.50 (64.15% of $1,000);State :$89.63.78 of $1,000; County
$268.88 of $1.000

Federal and State Financial Participation Rates in Title IV-E Adoption Assistance After July 1, 2011

2011-06-01T14:42:00.011-04:00

Family and Children and Adult Services Procedure Letter (FCASPL) 203A issued on October 5, stated that effective July 1, 2010 through September 30, 2011, the federal financial participation (FFP) rate for both Title IV-E adoption assistance and Title IV-foster care maintenance will be 63.69%. The Ohio Senate's version of the biennium budget may keep the state's adoption assistance participation rate at monthly payments of $250 or less. The Ohio House version of the budget accepted Governor Kasich's proposal to lower the state's participation rate to payments at or below $230 per month. Without negotiated participation by county agencies, Ohio's adoption assistance rates would be among the very lowest in the country. For this reason, the negotiation process is of crucial importance to adoptive parents.

Rules and procedures governing the negotiation of federal Title IV-E adoption assistance agreements and the right to appeal agency decisions remains the same. In my experience, adoptive parents who are willing to inform themselves and to take an active role in negotiating adoption assistance agreements always obtain a better support plan for their special needs children than parents who passively accept an agency proposal which they feel is inadequate.

Total Monthly Adoption Assistance Payment:$500

If the state's participation rate remains at adoption assistance payment of $250 or less, costs would breakdown as follows for a negotiated adoption assistance payment of $500 per month

First $250
Federal Share:$159,23 (63.69% of $250); State $90.78 (36.31% of $250); County 0

Remaining $250
Federal Share:$159.23 (63.69% of $250); State 0; County 36.31% of $250)

(Totals: $500
Federal Share:$318.45 63.69% of $500 State 90.78 of $500; County $90.78 of $500

Total Monthly Adoption Assistance Payment:$1,000

If the state's participation rate remains at adoption assistance payment of $250 or less, costs would breakdown as follows for a negotiated adoption assistance payment of $1,000 per month.

First $250
Federal Share:$159,23 (63.69% of $250); State $90.78(63.69% of $250;County 0

Remaining $750
Federal Share:$477.68(63.69% of $750;State 0; County $272.33(36.31% of $750)

Totals: $1,000
Federal Share:$636.90 (63.69% of $1,000);State $90.78 ;County $272.33

The distribution, of course, will change slightly if the Ohio House version prevails and the state maximum financial participation is limited to monthly adoption assistance payments of $230 or less. We will keep you up to date on the final state budget figures.

Judicial Determination for Title IV-E Adoption Assistance Not Required in Cases Where a Special Needs Child Qualifies for SSI

2011-04-28T14:16:00.001-04:00

In a March, 2011 e-mail to ODJFS policy makers, advocates and adoptive parents, I argued that in cases where a child meets the definition of a special needs child and qualifies for SSI, there are no additional requirements. Specifically, I contended that “judicial removal,” a judicial determination that “continuation in the home was contrary to the child’s welfare,” termination of parental rights and placement with for adoption was in the child’s best interest or other similar judicial determinations were not required for Title IV-E eligibility for the population of special needs children who qualified for SSI.

Sandra Holt, ODJFS’ Deputy Director Child/Adult Protection, Office of Families and Children affirmed this policy position in an e-mail dated April 28, 2011. She wrote

This letter is in response to your concerns regarding the administrative rules for determining eligibility for Ohio’s Title IV-E Adoption Assistance Program (AA). You expressed concern in an email dated 3/5/11 that when a child is SSI eligible, the child does not have to be judicially removed. You are correct. However, in order for a child to be eligible for AA, a child must be determined to be special needs.

Deputy Director Holt also responded positively to the recent notice in Section 8.2B.12, Question 3 of the federal Child Welfare Policy Manual, which provides that state IV-E agencies such as ODJFS may make SSI disability determinations for the purpose of assessing a special needs child’s eligibility for Title IV-E adoption assistance, although not for the SSI program itself. She wrote:

You also advocated for language to be added to administrative rules to allow the Public Children Services Agency (PCSA) to make the determination that the child meets the medical or disability requirements for SSI benefits in response to a recent clarification by the Children’s Bureau. There will be clarification added to the rule that will allow the PCSA the ability, if they choose.

Presumably, there will some training and guidance on SSI eligibility determinations for both county and state officials. Adoptive parents would also have the option of going to the local Social Security Administration for a disability determination. Finally, adoptive parents would retain the right to appeal denials of disability through the state administrative hearing system.

Clarification: OAC rule 5101:2-49-05 Pertaining to the Negotiation of Title IV-E Adoption Assistance Agreements and the Amount of Monthly Payment

2011-04-06T15:15:00.002-04:00

Until the language is changed, the phrase “operated by the PCSA”, should refer to all foster homes in which the PCSA places children, including those homes provided by caregivers through contracts with private foster care service agencies. This has been federal and state policy throughout the history of the Title IV-E adoption assistance program. There is evidence that some county agency’s are misusing the phrase “operated by the PCSA” in doing so are in violation of federal and state law. There may be some hearings and administrative appeals in the near future in which this misinterpretation by county agencies threatens adoption assistance to special needs children with extraordinary levels of care. Background Provisions on the amount of Title IV-E adoption assistance in OAC 5101:2-49-05 refer to the limits of federal financial participation, which is the child's appropriate foster home rate, that is the level of support the child receives or would receive in a foster home suitable to the child's level of care. (See federal law at 42 U.S.C. 673 and Section 8.2D.4 of the Child Welfare Policy Manual. Federal financial participation includes the federal share of payments to foster homes in which a child is receiving a relatively high, specialized foster payment rate because he or she has been deemed by the county agency to require a more intensive level of care. Federal financial participation is available at the same rate to homes provided under contract with private service providers as well as "agency" homes. The federal financial participation rate functions as the practical, de facto ceiling on a child's Title IV-E assistance payment because, in any payment beyond that amount, the state or county would incur 100% of the cost. Significance for Negotiation of Adoption Assistance Payments The negotiation of adoption assistance is affected by the maximum rate of federal financial participation, which is the actual amount paid for the care of the child in a foster home or would be paid if the child were placed in a foster home suitable to their level of care. This means that a if a child is receiving $1,300 per month in a specialized foster home provided through a contract with a private foster care network, then federal financial participation is available for adoption assistance payments of up to $1,300 per month. The Ohio Department of Job and Family Services (ODJFS) confirmed this view in an the following e-mail of April 1, 2011.

Hello Tim: Ohio has always interpreted this rule reference to mean any home that is operated or contracted by the PCSA. In other words the rate that is to be used is the rate that is paid to the foster home. If the home is being operated by a private agency then the administrative rate cannot be used in the calculation for AA. The Title IV-E rules are up for review and this section as for others has been clarified due to comments made previously. Hopefully you will await the rule changes that are coming out and then comment. Should there be a specific issue you can send me the issue and I will be able to help assist in the resolution.

County agencies may not: 1. Unilaterally Limit the amount of adoption assistance to the rate paid to an "agency" home in which the child does not reside. 2. Unilaterally limit the amount of adoption assistance to a "level of care" calculation or formula in if the level of care is not the same as the monthly payment actually being made to the foster home. Unlike some other states, Ohio has no statewide Title IV-E adoption assistance rate schedules. As a consequence, each adoption assistance negotiation is child specific. Each negotiation must be based upon the specific needs of the child and individual circumstances of the family. Any county that attempts to set its own maximum adoption assistance rates which are lower than the child's actual foster care rate violates federal and state law in a number of respects, including the following: a. By establishing a maximum payment amount, the county is refusing to negotiate an individualized agreement with the adoptive parents. b. A county maximum rate based upon "agency" foster home rates or "level of care" standard other than what the child was actually receiving in foster care fails to discuss and negotiate an adoption assistance based upon the special needs of the child and circumstances of the individual family. There is no legal basis for an agency to take the arbitrary position in the case of therapeutic foster home in which the child was receiving $1,500 per month that "we will not make an adoption assistance payment of more than $800 per month." To do so ignores the careful consideration the individual child's needs and specific family circumstances required by federal and state law. c. The absence of state-wide adoption assistance rate schedules in Ohio prohibits county agencies from establishing their own categorical rate schedules that ignore the individual needs of the child and specific circumstances of the adoptive family.

Governor Kasich's Budget Proposal for Title IV-E Adoption Assistance

2011-03-17T13:48:00.010-04:00

Governor Kasich's budget calls for a reduction in the state participation rate in Title IV-E adoption assistance from $250 to $230. If eventually passed, state matching funds would be available up to an adoption assistance payment of $230 per month instead of $250. We are not sure what the federal financial participation rate will be as of July 1, 2011, but it will be at least 60% of the total adoption assistance payment, probably a bit more. County agencies would continue to be responsible for the non-federal portion for each dollar of a monthly adoption assistance payment over $230 per month, instead of $250 per month. Even at 40%, the additional cost to the county of the $20 reduction in the state's financial participation rate would be $8 per month. Federal financial participation will continue to be available up the level of support a child would receive if he or she were placed in a foster home suitable to their level of care.

The above provision is part of the Governor's proposed budget. It is not law. The Ohio General Assembly must take up the proposed legislation and we will try and track it. If the reduction of the state's financial participation rate should be reduced from a maximum of $250 to a maximum of $230, don't forget, that until recently, the state's financial participation rate was limited to adoption assistance payment rates of $240 or less from September 2008 until June 2010, so the change, while regrettable is not that dramatic.

County agencies learned during the last budget go round in 2008, that they cannot unilaterally reduce existing adoption assistance payments. Adoption assistance agreements may not be modified without the consent of the adoptive parents. Following the last state biennium budget, county agencies were forced to resort to "requests" that adoptive parents voluntarily agree to a modification of their existing adoption assistance agreements in order to lower payments. Some agencies resorted to devious tactics in trying to persuade adoptive parents to accept decreases.

It is important to remember two things:

1. Reductions in existing adoption assistance agreements cannot be imposed by county agencies. Reductions can only be made with the consent of the adoptive family. Agencies may propose a reduction, but if parents appeal by requesting a hearing, the existing adoption assistance payment rate remains in place until the hearing process is completed. In any hearing, the burden would fall heavily on the agency to show by a preponderance of evidence that a decrease in adoption assistance was justified by positive changes in the child's needs and/or family circumstances. This burden is very difficult to meet. County agencies rarely even try to force a reduction in adoption assistance through the hearing process. I am not aware of any attempt that has succeeded.

Ultimately, the decision to accept a "voluntary" reduction in adoption assistance is up to the individual adoptive family. If you conclude that it is in your child's best interest to retain the existing adoption assistance payment, then reject any request for a reduction without guilt. Please do not be drawn in by attempts to shame you into submission. Your responsibility is to your special needs children. You have no control over agency budget decisions or negotiations involving other children's adoption assistance agreements. Do not make any decisions based on apocalyptic predictions of bad things happening to future adoptive families. Such claims are often exaggerated and misleading. Predictions that the Title IV-E adoption assistance program may be abolished if you do not acquiesce, for example, are nonsense.

2. The rules, policies and procedures pertaining to the negotiation of adoption assistance agreements will not change. Parents will retain their due process rights to negotiate adoption assistance agreements and to appeal. Agencies will still be required to negotiate adoption assistance agreements based upon the child's needs and family circumstances.

Although I have sympathy for the tight budgets of county agencies, I would be more moved by their plight if they didn't propose adoption assistance payments that were so far below the level of support received by the child in his or her foster home. Given the fact that a majority of special needs children are adopted by their foster parents, it has always appeared to be a bit disingenuous to argue that a child with the same needs being adopted by foster parents with the same family circumstances should receive a monthly adoption assistance payment that is hundreds of dollars less that the child's monthly foster care payment.

Let me know if you have questions. You can contact me by e-mail at tpohanlon@gmail.com or by phone at 614-299-0177.

Tim O.

Phase Out of AFDC Relatedness Requirement Applies to Children Who Became Sixteen on or After October 1, 2009 Regardless of When Revised Ohio Rules Wen

2011-01-31T14:53:00.003-05:00

As many of you know, the dreaded AFDC relatedness eligibility requirement for Title IV-E adoption assistance is being phased out. For a detailed description, see the Blog post dated December 9, 2008, entitled "Congress Amends Title IV-E Adoption Assistance Requirements by Phasing Out the AFDC Relatedness Requirement." Because the rules implementing the, The Fostering Connections to Success and Increasing Adoptions Act of 2008, PUBLIC LAW 110–351, did not go into effect until April 1, 2010, some parents adopting older children may have incorrectly been denied eligibility for Title IV-E adoption assistance.

Age Related Provisions

PUBLIC LAW 110–351 went into effect on October 7, 2008. TITLE VI, Section 601(a) of the Act states:

Except as otherwise provided in this Act, each amendment made by this Act to
part B or E of title IV of the Social Security Act shall take effect on the date
of the enactment of this Act, and shall apply to payments under the part amended
for quarters beginning on or after the effective date of the amendment.

The necessity of the state legislature to enact a law to implement the changes in the adoption assistance program, constituted the only exception to the effective date of October 7, 2008.
Ohio Administrative Code (OAC) rule 5101:2-49-02(d)(ii) repeats the federal phase out provisions of the AFDC relatedness requirement in the federal law. It states:

a. During October 1, 2009 through September 30, 2010, the child turns or is
older than sixteen years of age and the PCSA and the adoptive parent(s)
enter into an AA agreement.

b. (b) During October 1, 2010 through September 30, 2011, the child turns or is older than fourteen years of age and the PCSA and the adoptive parent(s) enter into an AA agreement.

Removal from the Home of a Specified Relative

The requirement that a child be removed from the home of a specified relative is part of the AFDC relatedness requirement. OAC rule 5101:2-49-02.1 defines the AFDC-Relatedness requirement as follows:

(A) For purposes of meeting the requirements of rule 5101:2-49-02(A)(7)(a) the child shall meet the aid to families with dependent children (AFDC) relatedness requirements authorized under Title IV-A of the Social Security Act as of July 16, 1996 if at the time of removal from the home of the specified relative, one of the following is met:

(1) The public children services agency (PCSA) filed a petition with the court requesting custody of the child. The first court order, including temporary order, removing the child from the home of the specified relative shall include a judicial determination that the child cannot or should not be returned to the home of his or her specified relative.

(2) The removal was a result of a court order that placed the child in the custody of the PCSA. The first court order, including temporary order, removing the child from the home of the specified relative shall include a judicial determination that the child cannot or should not be returned to the home of his or her specified relative.

If a child is not required to meet the AFDC relatedness requirement, the requirement that a child must be removed from the home of a specified relative does not apply.

Retroactive Effect of PUBLIC LAW 110–351 and OAC 5101:2-49-02

If a child became 16 after October 1, 2009 and before April 1, 2010 when the revised Ohio rules implementing PUBLIC LAW 110–351 went into effect, he or she is exempt from the AFDC relatedness requirement, including the provision for removal from the home of a specified relative.

Other exemptions such as:

Children residing in out of home placement for 60 consecutive months, or

Children placed with a sibling who meets falls into one of the exempt categories
are also exempt.

Advice to Parents

Adoptive parents with children that were incorrectly determined ineligible for Title IV-E adoption assistance because of delays in implementing the exemption to the AFDC relatedness requirement in PUBLIC LAW 110–351, should apply or re-apply to the county agency for Title IV-E adoption assistance. If the adoption has been finalized, the application will be denied, giving the parent a right to a state administrative hearing. Considering the effective date of the federal law and the actual language of OAC rules 5101:2-49-02 and 5101:2-49-02.1, the parents should prevail at the hearing. Feel free to contact me if you have any questions about this issue.

Some Adopting Parents Pressured to Sign Adoption Assistance Agreements Before Adoptive Placement

2011-01-25T14:56:00.002-05:00

Adoptive parents have reported that some county agencies attempt to secure an adoption assistance agreement before completing the adoptive placement agreement. Federal and state law both provide that adoption assistance payment MAY begin on the date of placement, but there is no requirement that adoption assistance payments MUST begin on the date of placement. County agencies cannot legally compel adoption assistance agreement to be completed before adoptive placement.

Ohio Administrative Code (OAC) rule 5101:2-49-08 clarifies the requirement. In the case of children being adopted by their foster parents, the agency must " inform certified foster caregivers who are receiving foster care payments for the care of the child, of the option to continue the foster care payments until the adoption is finalized." The agency must convey this option to the foster parents " before the date on which the child is placed for adoption." See paragraph (D).

Paragraph (B) of the rules specifies "if a child is placed for adoption and all other eligibility requirements have been met, but the completion and signing of the AA agreement is delayed, the AA payment may begin on the date the child was placed for adoption, once the AA agreement is completed and signed by all parties." The primary reason for delay in both of the above examples is continuing negotiation of an adoption assistance agreement by the adopting parents and the agency.

Adopting parents being pressured by agencies to complete adoption assistance agreements should cite OAC rule 5101:2-49-08 and refuse to comply if they are not ready. You may contact with questions me if you wish.

Important News About the Adoption Tax Credit

2010-12-28T10:31:00.003-05:00

The North American Council on Adoptable Children (NACAC) has important news about the Adoption Tax Credit.

The health care reform bill made the U.S. federal adoption tax credit refundable for 2010 and 2011. New guidance from the IRS states that adoption tax credits carried forward from previous years will also be refundable, which means that families who adopted as far back as 2005 but who didn't have enough tax liability to use the credit in the past can take full advantage of the credit with their 2010 return.

Go to the NACAC web site at www.nacac.org for information. NACAC will host Webinars on the Tax Credit, so keep checking the site.

State's Title IV-E Financial Participation Rate at $250 Through June 30, 2011

2010-11-15T14:27:00.003-05:00

If you have not already heard, last June, the Ohio Department of Job and Family Services (ODJFS) raised the state's Title IV-E financial participation rate (FFP) from a maximum of $240 per month to a maximum of $250 per month though June 30, 2011. (See Family, Children, and Adult Services Procedure Letter No. 195, June 18, 2010. Procedure Letter 196 announced the maximum state adoption maintenance subsidy would be $250 per month for the same period. June 30, 2011, marks the end of State Fiscal Year 2011.

The county agency must provide the non federal portion of any adoption assistance payment over $250. The non-federal financial participation rate for both the state and county remains at 31.66% until at least December 31, 2010. The federal financial participation rate is 68.34%.

Although, the increase in the state's FFP is modest to say the least, it appears that some county agencies have not gotten the word. Adoptive parents in need of an additional $10 per month, can request an amendment to their current adoption assistance agreements if they choose.

The state's FFP in Ohio is one of the lowest in the entire country. The opportunity of adoptive parents in Ohio to receive at all adequate Title IV-E adoption assistance payments for their special children rests entirely on their ability to negotiate agreements with county agencies based upon considerations of the overall needs of the child and the overall circumstances of the adoptive family. Federal and OAC rule 5101:2-49-01 support a negotiation process that considers:

the ordinary and special needs of the child projected over an extended period of
time and should cover anticipated needs, e.g., child care; AND

the adopting family's capacity to incorporate the child into their household in
relation to their lifestyle, standard of living and future plans, as well as
their overall capacity to meet the immediate and future needs (including
educational) of the child.

Ultimately, an adequate adoption assistance payment depends upon the adoptive parents' ability to secure an agreement with the county agency to contribute a certain level of matching funds (FFP) in secure a sufficient level of federal funding and bring the adoption assistance payment above $250 per month and closer to the child's appropriate foster home payment rate.

The Announcement of the state's FFP for Title IV-E adoption assistance rate may be found on the ODJFS web site. To find the foster care survey, go to the ODJFS web site at http://jfs.ohio.gov. Then, click on: Adoption, Site Index, eManuals, Family, Children and Adult Services Manual , FCASM Procedure Letters.

2010 Ohio County Foster Care Rates and Federal Financial Participation in Title IV-E Adoption Assistance

2010-11-12T12:35:00.003-05:00

Family, Children, and Adult Services (FCASM) Procedure Letter No. 203, published on September 17, 2010 includes an attachment which reports as 2010 survey of foster care rates in Ohio Counties. The federal financial participation (FFP) rate for Title IV-E adoption assistance is based upon the individual child's appropriate foster care rate. Specifically, FFP is available up to the Family, Children, and Adult Services (FCASM) Procedure Letter No. 203, published on September 17, 2010 includes an attachment which reports as 2010 survey of foster care rates in Ohio Counties. The federal financial participation (FFP) rate for Title IV-E adoption assistance is based upon the individual child's appropriate foster care rate. Specifically, FFP is available up to the rate the child would receive if he or she were in a foster home suitable to the child's level of care. The current FFP rate, at least under December 31, 2010, is 68.34%.

To find the foster care survey, go to the ODJFS web site at http://jfs.ohio.gov/. Then, click on
Adoption, Site Index, eManuals, Family, Children and Adult Services Manual , FCASM Procedure Letters. NOTE: The survey does make it clear whether the published foster care rates include monthly payments on behalf of children whose care is provided by outside foster care service agencies under contract with the county agency. Contracting with outside sfoster care services providers has been a long term and expanding trend in Ohio. Often these providers support homes for children with higher, specialized levels of care and children receive relatively higher levels of monthly support. In examining the survey, the adoptive parent should ask if the published rates include foster homes provided through outside service providers.

Knowing the range of county foster care rates can aid adoptive parents in the negotiation of adoption assistance agreements.

FFP functions as kind of a practical ceiling on adoption assistance payment rates because anything amount over the foster home rate must be paid entirely from County funds. Needless to say, county agencies are reluctant to agree to such an arrangement. The foster home rate with respect to FFP in adoption assistance refers to the level of foster care the child would receive today were he or she in a foster home rather than in an adoptive setting.
Just as foster home rates are subject to change based on the child's age and level of care, so does available FFP with respect to adoption assistance.

For example, let's suppose the adoptive parents negotiate an initial adoption assistance agreement of $450 based upon their three year old child's foster care rate of $500 per month. By the time, the child reaches the age of eight, he has been diagnosed with serious developmental and emotional problems. Given his age and level of care, were he placed in an appropriate foster home, the monthly payment would be $1,000 because he would be regarded as a child with a specialized level of care. If the adoptive parents, in experiencing these changes, decide to request an amendment in the initial adoption assistance agreement and an increase in the monthly adoption assistance payment to better reflect the child's current needs and family circumstances, the potential FFP would be $1,000 per month. The county agency is not required to negotiate an revised agreement for $1,000, but federal financial participation is available for an amended adoption assistance agreement up to $1,000 a month.

It shouldbe noted that with respect to federal financial participation in adoption assistance, the applicable foster rate is the level of support the child receives or would receive in a foster home. It makes no diffetrence whether it is a so called "agency home" or one provided through a service provider under contract with the agency.

Section 8.1E of the federal Child Welfare Policy Manual asks and answers the following question.
1. Question: Under the title IV-E foster care program may the title IV-E State agency contract for some child foster care functions (administrative or otherwise) and still be eligible for Federal financial participation (FFP), as long as the State agency retains responsibility for the placement and care of the child?

Answer: Yes. Under title IV-E, such functions as training, recruiting or licensing of foster homes for which the State contracts with private agencies are defined as allowable costs for the proper administration of the State plan and may be claimed for purposes of Federal financial participation (FFP). Responsibility for the placement and care of the foster child, however, must remain with the State agency.

•Source/Date: ACYF-CB-PIQ-82-07 (8/25/82)
•Legal and Related References: Social Security Act - section 474 (a)(3)(B)

If FFP is avaialble for foster service providers under contract with county agencies, then it is obviously the rate of available FFP in the negotiation of adoption assistance agreements. If a child in a therapeutic foster home provided under through Elysian Fields Foster Care Services under contract with Buckeye County is receiving $1,600 per month, then FFP is available for an adoption assistance payment of up to $1,600 per month.

Announcement

2010-08-23T11:49:00.002-04:00

As most of you know, I am retired from the Ohio Department of Job and Family Services. I have recently quit a part time job to devote more time to advocacy on behalf of adoptive parents. In fairness to my own family, I will charge a small fee for extended services such as helping parents engage in prolonged negotiations for adoption assistance and representing adoptive families at administrative hearings. For these more involved services, I will charge a one time fee of $50 to $100. The fee includes seeing the matter to its conclusion.

Other services such as answering policy questions, providing information and the like will to continue to be offered free of charge. Parents are encouraged to contact me with questions and problems. I will do my best to provide answers, suggestions, strategies and a sense of direction. At that point if the family feels empowered to advocate for themselves, they may continue to contact me with periodic questions, all free of charge. I will only ask for a fee, if the parents want me to become involved as representative.

I am also available to speak to groups of parents about adoption assistance for a modest negotiable fee.

My goal is to continue to make services and support available to any adoptive families and to keep any fees at an affordable level so no one will be denied access to help. Please feel free to contact me at 614-537-2840 or e-mail me at tpohanlon@gmail.com.

Hamilton County’s Approach to Negotiating Adoption Assistance Agreements Shows Promise

2010-05-27T19:13:00.003-04:00

In two recent cases, Hamilton County conducted negotiations for Title IV-E adoption assistance in a manner that could stand as a model for Ohio. The agency sends adoptive parents a questionnaire “tool” to start the negotiation process. The questionnaire is not broad enough in scope to cover all the concerns that might fall under a child’s needs and family circumstances.

Unlike other Ohio agencies, however, the questionnaire constituted only a step in the negotiation, not the entire process. The initial amount of adoption assistance offered by the agency was also viewed as a starting point, not the drop dead bottom line, or we will place your children with another family ultimatum, that parents in other counties experience on a fairly regular basis.

When the parties actually met, Monique E. Gregory and other Hamilton County participants were willing to consider a range of concerns raised by the parents including, child care costs, various activities of a social nature and additional expenses incurred by the family designed to better incorporate the child into a permanent family. As a consequence, in two instances, an initial proposal of $350 ended in adoption assistance agreements of over $700 per month, amounts close to the monthly foster care payment.

Priciples Worth Considering

The staff at Hamilton County:

Listened and recognized the validity of the parents’ concerns in-as-much as they
knew the children and their own situations better
than anyone.

Maintained flexibility in agreeing to raise the monthly adoption assistance payment initially proffered in response to the parents concerns about their children’s overall needs and their overall family circumstances.

Recognized that adoptive parents have complete discretion in deciding how best to adoption assistance may be used on behalf of their children.

Recognized that no one, including the parents is silly enough to expect that the family can come close to providing for a special needs child on monthly adoption assistance payments alone. Adoption assistance is intended to serve as an important supplement that when combined with the parents’ resources enables them to continue the sacrifices necessary to “cover the ordinary and special needs of the child projected over an extended period of time," including anticipated needs. (See Section 8.2D.4 of the federal Child Welfare Policy Manual). Consequently, Hamilton County seemed to recognize that the primary issue in the negotiation is the following. Considering the child’s overall needs and family circumstances, what is a fair and adequate monthly adoption assistance payment that will enable you to sustain this child in a permanent family?

Appeared committed to reaching a mutually satisfactory adoption assistance agreement.

Negotiation of adoption assistance is governed by federal and state laws, but those laws set forth procedures and guidelines rather than formulas. A successful model of negotiation depends upon a common understanding of the purpose of adoption assistance and a mutual focus on supporting a successful, permanent family for the child. Assuming that the two cases are representative, Hamilton County’s approach to negotiation appears to constitute a promising step toward the process envisioned in state and federal law.

It is of course impossible to evaluate an entire program, particularly one as contentious as the negotiation of adoption assistance agreements on the basis of two cases. Further questions remain. Both of the negotiations in question involved children with somewhat moderate special needs. What happens if the child in question requires a specialized level of foster care? Is Hamilton County willing to negotiate an adoption assistance agreement that reflects the expenses and adjustments associated with a child with exceptional care needs? Nonetheless, Hamilton County’s philosophy and procedures are worthy of additional study in an effort to improve negotiation practice standards across Ohio. Such improvement is sorely needed, as a number of counties routinely ignore federal and state regulations.

Note: Please contact me at tpohanlon@gmail.com if you know of other agencies whose negotiation practices are worth noting and perhaps emulating.

Some County Trends in Negotiation of Adoption Assistance Agreements Appear Contrary to Federal and State Law

2010-04-09T12:09:00.003-04:00

Instead of negotiating of Title IV-E adoption assistance, some Ohio county agencies appear to have adopted the practice of requesting specific information from the adoptive family and then deciding, without further discussion, how much monthly support the adopted child will receive. Such practices are contrary to federal and state law, because:

1. Negotiation is required. By definition involves active participation by both parties toward a common goal (adoption assistance agreements), not a unilateral determination by an agency.

2. The information requested by the agency often pre-selects the issues that will be considered and rejected in determining the amount of adoption assistance

The requirement to negotiate adoption assistance agreements

Ohio county agencies are obliged to negotiate an adoption assistance agreement with adopting parents based on a consideration of the child’s needs and family circumstances in accordance with OAC rule 5101:2-49-05.

Item 3, Article IV of the JFS 01453 Adoption Assistance Agreement form sets forth the terms of negotiation based on federal and Ohio law. Item 3 IV of the agreement form states:

The agency and the adoptive parent(s) have had an extensive discussion about the
child’s present and future service needs and [overall family circumstances] the
adoptive parent's/parents' ability to incorporate the child into the adoptive
family and to meet the child’s needs.

Paragraph (G) of newly revised Ohio adoption assistance rule OAC 5101:2-49-01(G) provides:

A face-to-face interview with the adoptive parent(s) is required at application.
If the adoptive parent(s) resides out-of-state or in another county which is a
considerable distance from the agency, a face-to-face interview is not required.
The PCSA may ask the public child service agency (CSA) in the other county or
state to assist with the determination of eligibility or continuing eligibility.

Submitting information is a prelude to negotiation, not the negotiation itself. By any reasonable definition, negotiation involves active participation between the parties toward a common goal (an adoption assistance agreement), not a unilateral determination by an agency.

Procedures and criteria for negotiating adoption assistance agreements

We recently highlighted two 2009 Ohio administrative appeal decisions rendered clarified and explained what is involved in consideration of the child’s needs and family circumstances. Both cited the language below from Section 8.2D.4 of the Child Welfare Policy Manual in upholding the adoptive parents’ appeals. Administrative appeal decisions are reviews of state administrative hearings by ODJFS legal services staff. [See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), June 23, 2009 and Docket Number: AA-4651, Appeal No(s) 1499112, December 3, 2009.]

Section 8.2D.4 of the federal Child Welfare Policy Manual as the ODJFS administrative appeal decisions point out, provides:

Title IV-E adoption assistance is not based upon a standard schedule of itemized
needs and countable income. Instead, 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.

The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to 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. (Emphasis added).

The Administrative Appeal Decisions were signed by the Head of the ODJFS Office of Legal Services as well as the reviewer

In many cases agencies request information about a limited number of specific expenses that exclude significant areas of concern to the adoptive family, such as lost income resulting from remaining at home to provide intensive care for a special needs child, or the cost of anticipated care needs, treatments or important activities. As discussed in previous posts, Erie County developed a manual several years ago and its principles, though out of compliance with federal and state law have been embraced by other Ohio county agencies.

These county agencies ask for information with some key assumptions in mind:

1. The agency refuses to recognize any circumstance or expenses that might be embraced by a non-adoptive family. For example, in spite of the reference to family circumstances, the agency refuses to include loss of income resulting from a parent giving up a job to care for a special needs child as a legitimate consideration in the negotiation of adoption assistance agreement. Adoptive parents are well aware that they will never negotiate an adoption assistance agreement that matches the lost income from a job, but it is certainly legitimate to view adoption assistance as a supplement which combined with the family’s primary resources will enable the parents to continue to make sacrifices that benefit their child. One would think that an agency would actively seek out parents willing to give up a career to care for a special needs child make every effort to find adequate support for them.

2. In spite of language to the contrary in the federal Child Welfare Policy Manual and aforementioned Ohio administrative appeal decisions, the county agency refuses to recognize expenses related to ordinary or anticipated needs. Activities benefiting a child’s social and psychological development, daily expenses associated with raising a child, anything that does not pertain directly to the child’s special needs condition may be rejected.

3. The agency insists on determining what itemized expenses were “acceptable” and “unacceptable” and what portion of the activity or the expense the county was willing to approve. This position in inconsistent with the requirement to negotiate in state and federal law.

No one is more aware of their circumstances and the child’s future needs and expenses than the adopting parents. Dozens of conversations with adoptive parents have demonstrated that their concerns about the need for adoption assistance fall quite neatly into the child’s needs and family circumstances. In responding to an agency’s request for information, adopting parents should include factors, situations and expenses with which they are concerned, including anticipated as well as current needs. Parents need not submit exact cost figures, the overall needs and expenses will always be much higher than the monthly adoption assistance. Rather, the parents should discuss general areas of concern and approximate expenses that are tied to those areas of concern. The idea is to provide a relatively clear picture of the family’s situation as it attempts to incorporate a child into a stable, loving, permanent home.

Parents should respond to an agency’s request for information in a manner that reflects their own view of what they are facing and what they will need. They can, for example, answer the agency’s questions and add their own concerns as an addendum to the agency questionnaire. For example:

Dear _______,

As you are aware, federal and state laws pertaining to negotiation of Title IV-E adoption assistance agreements require that the parties consider the child’s ordinary and special needs, both current and anticipated as well as our overall family circumstances. We have attempted to respond to your questions, but find them too limited. They do not adequately encompass __________’s care needs or take account of the adjustments in our family situation related to providing a permanent, stable home for (him/her).

Accordingly, we are presenting the following categories of activities and expenses to give you a clearer picture of the challenges that lay ahead. We are aware that the total expenses we are including, greatly exceed any adoption assistance payment we may negotiate. We present the following comprehensive picture of expenses _______’s needs and our family circumstances in hopes of creating a common context for negotiation. We fully accept the proposition that raising a special needs child will require considerable sacrifice on our part. Our goal is to negotiate an adoption assistance that, when combined with our other resources, will enable us to continue the sacrifices needed to provide a permanent family for __________.

NOTE: Here discuss expenses that are significant concerns to you. You know your needs and situation better than anyone. If you are able, include approximate cost figures, but you do need to be exact. Negotiation should not consist in merely adding up the costs. Let the agency know you do not expect the adoption assistance to cover most of the costs involved in raising a special needs child. Rather, Title IV-E adoption assistance is intended to provide a supplement to family resources that will you to continue to make the sacrifices necessary to provide a stable, loving and permanent home. For example:

Wife quits job to provide care for child recommended by health care provider.
Loss of $35,000 per year in family income.

Activities, lessons needed to improve social skills, confidence, and emotional problems. Approximate cost.

Food, shelter, clothing, especially of a specialized nature.

Anticipated treatments for medical or mental health issues.
Treatments/therapy not covered by insurance or Medicaid.
Childcare/respite appropriate to the child’s needs.
Necessity to expand home, buy a new car, move to a new home in order to accommodate an additional child.

NOTE: Rely on your experience intuition to include costs that are significant concerns to you. No one knows your situation better than you. In my discussions about the amount of adoption assistance they need, adoptive parents’ concerns inevitably fall under children’s needs and family circumstances. So trust your judgment.

You can answer the agencies questions, but include what you feel is important. Do not get trapped into a negotiation that considers a limited number of itemized costs selected by the agency which do not reflect your actual concerns.

Revised Ohio Rules and Revised Adoption Assistance Guidebooks

2010-03-26T12:12:00.006-04:00

Ohio's revised Title IV-E adoption assistance rules take effect on April 1, 2010. Interested adoptive parents, advocates, agency professionals may be interested in one of the three revised e-books. Each reflects the recent develops and changes in policy.

Employing a question and answer format, the guidebooks walk the reader through eligibility rules and issues that are likely to arise in dealing with county agencies, offer strategies in negotiating adoption assistance agreements and practical steps in preparing for a state adminstrative hearing.

The guidebooks may be accessed at the Adoption Policy Resource Center web site at http://www.fpsol.com/adoption/advocates.html.

User’s Guide to Federal Adoption Assistance in Ohio, 2010

The Adoption Advocates e-book, User's Guide to Federal Adoption Assistance in Ohio, has been revised to reflect the amendments to Ohio's Title IV-E adoption assistance rules which went into effect in March, 2010. Key changes include:

• Ohio rules pertaining to adoption assistance eligibility for special needs children placed by private agencies have been revised to better reflect federal law. As a consequence, two of the formidable barriers that impeded eligibility have been removed.

• SSI is a pathway to Title IV-E eligibility, in-so-much as SSI is means tested after the final decree of adoption and Title IV-E adoption assistance is not. Parents seeking to access adoption assistance by qualifying for SSI must do so prior to finalization. Prior Ohio rules required that SSI eligibility be determined prior to the petition for adoption.

Two New Ohio Related Guidebooks

Without a doubt, negotiating Title IV-E adoption assistance agreements remains the most contentious issue in the special needs adoption program. As such, disagreement over negotiation criteria and procedures as well as the amount of assistance is the most frequent topic of state administrative hearings involving adoption. Because of the complexities involved in negotiating adoption assistance and the appeals resulting from denials of Ohio county public children services agencies (PCSAs), we offer two new related books on these subjects: Funding and Negotiation of Adoption Assistance in Ohio, 2010 and Appealing Agency Decisions on The Amount of Title IV-E Adoption Assistance, 2010.

Funding and Negotiation of Adoption Assistance in Ohio, 2010

Chapter 1 of this new e-book, explains the how the financial responsibility for funding Title IV-E adoption assistance in Ohio is divided among the federal state and county governments. By understanding federal financial participation, the reader should acquire a better understanding of the legal and practical limitations in obtaining adoption assistance. Chapter 2, walks the reader through the legal requirements for the negotiation of adoption assistance agreements. The chapter contains practical recommendations on how to approach the process of negotiation.

Appealing Agency Decisions on The Amount of Title IV-E Adoption Assistance, 2010.

Chapter 1 of this new e-book takes the reader through the appeals process itself including a detailed consideration of state administrative hearings. The second chapter provides practical information on how to prepare for a state administrative hearing involving disagreement over the amount of adoption assistance. There is considerable overlap between the information presented in Chapter 2 of this guidebook and Chapter 2 of Funding and Negotiation of Adoption Assistance in Ohio, 2010, but the information in this e-book is organized around preparation for a hearing. Appendix A of Appealing Agency Decisions on The Amount of Title IV-E Adoption Assistance, offers a sample hearing statement for adoptive parents and their advocates to use as a model.

Revised 2010 Ohio IV-E Adoption Assistance Rules Remove Barriers to Eligibility for Special Needs Children Placed by Private Agencies

2010-03-15T14:09:00.004-04:00

The revised Ohio Title IV-E adoption assistance rules scheduled to go into effect on April 1, 2010 remove two important barriers to eligibility for special needs children placed by private agencies. The amended rules are consistent with federal law as interpreted by the Child Welfare Policy Manual.

Issue 1: Reasonable attempt to place the child without provision for adoption assistance

The third section of the federal special needs definition set forth in federal law at 42 U.S.C. 673(c) states:

Except where it would be against the best interest of the child to place the child because of such factors as the existence of significant emotional ties with prospective adoptive parents while in the care of such parents as a foster child, a reasonable but unsuccessful, effort has been made to place the child with appropriate adoptive parents without providing adoption assistance under this section or medical assistance under subchapter XIX of this chapter.

Ohio’s revised 2010 rules addressing this issue may be found in OAC rule 5101:2-49-03(A) (4).

Reasonable, but unsuccessful, efforts to place without adoption
assistance.
(a) Except as described in paragraph (A)(4)(c) of this rule, the
PCSA shall document that in each case a reasonable, but unsuccessful, effort was
made to place the child with appropriate adoptive parents without adoption
assistance.
(b) The agency shall list in each child's case record:
(i) The
specific factor(s) or condition(s) listed in paragraph (A) (3) of this rule that
makes the child difficult to place, and
(ii) The efforts to place the child for adoption without the provision of adoption assistance.

The most significant change in rules is contained in OAC 5101:2-49-03(A) (4) (c). This portion of the rule addresses situations in which in accordance with federal law “it would be against the best interests of the child . . . “ to make an effort to place the child without adoption
assistance. Paragraph (4) (c) states:

When it is in the best interest of the child to place with a particular adoptive
parent(s) because of such factors as the existence of significant emotional ties
with prospective adoptive parent(s) while in the care of the parent(s) as a
foster child, adoption by a relative, or other circumstances that relate to the
child's best interest:

(i) The agency shall inquire as to whether the adopting parent(s) is willing to adopt without adoption assistance.
(ii) There is no additional requirement to make reasonable, but unsuccessful, effort
to place the child without adoption assistance beyond the requirement specified
in paragraph (A) (4) (c) (i) of this rule.
(iii) Documentation as to the inquiry and the basis for any exception shall be included in the child's case record.

This section of the revised rules was written to reflect Section 8.2B.11 of the federal Child Welfare Policy Manual dealing with special needs. This language was originally set forth by the federal Children’s Bureau with the publication of Policy Information Question (PIQ) 92-02 in 1992.

The PCSA must document in each child's case record the specific factor(s) that
makes the child difficult to place and describe the efforts to place the child
for adoption without providing assistance. Once the agency has determined that
placement with a certain family is in the child's best interest, the agency
should make full disclosure about the child's background, as well as known or
potential problems. If the agency has determined that the child cannot or should
not return home and the child meets the statutory definition of special needs
with regard to specific factors or conditions, then the agency can pose the
question of whether the prospective adoptive parent(s) is willing to adopt
without assistance. If they say they cannot adopt the child without adoption
assistance, the requirement in section 473 (c) (2) (B) for a reasonable, but
unsuccessful, effort to place the child without providing adoption assistance
will be met

Advice to agencies and adoptive Parents in satisfying this requirement that it is contrary to the child’s interest to be placed without provision for adoption assistance

If the state does not develop a form for the satisfying the above requirement, a reasonable approach to documentation would be to develop standardized language that incorporates the actions set forth in the requirements. An agency and/or parent might develop a statement such as the following:

Suggested language to establish to that it is contrary to the child’s interest to be placed without provision for adoption assistance

The (name of agency) has determined that (name(s)) are desirable parents for
(child’s name) and capable of incorporating him/her into a stable and healthy
family.

The (name of agency) has provided the adoptive parents (name(s) with complete information regarding (child’s name) medical, social and family history and discussed with (names) the significant, risk factors, along with current and anticipated special needs.

The (name of agency) has provided the adoptive parents with information about Ohio’s adoption assistance and adoption subsidy programs. (Name) meets or appears to meet all of the eligibility requirements for Title IV-E adoption
assistance.

After a thoughtful deliberation regarding the child’s background, current or anticipated special needs, the circumstances of the adopting family, (names of parents) are not willing to proceed with the adoption without provision for Title IV-E adoption assistance because they have determined that to do so would deprive the child of a valuable source of support and be contrary to his/her welfare. (Add signature).

Remember that being unwilling to proceed without provision for adoption assistance does not present adoptive parents with a choice about going through with the adoption. In essence, adoptive parents are asked to respond to the following: “Inasmuch as your child is eligible, knowing what you know about your child and your family circumstances, do you choose to go forward without adoption assistance?”

Issue: 2 The Judicial Determination in cases where the child is voluntarily relinquished (permanently surrendered) to a private agency.

The amended provisions in OAC 5101:2-49-02.1 reflect the language in Section 8.2B.13 of the Child Welfare Policy Manual. Question 1 asks: “Is a child who is voluntarily relinquished to a private, nonprofit agency eligible for title IV-E adoption assistance?”

Answer: As authorized by section 473(a) (2) (A) (i) (I) of the
Act, a child is eligible for title IVE adoption assistance if s/he is removed
from the home by way of a voluntary placement agreement with respect to which
title IV-E foster care payments are provided, or as the result of a judicial
determination that to remain in the home would be contrary to the child's
welfare. However, a child who is voluntarily relinquished to either a public or
private, nonprofit agency will be considered judicially removed in the following
circumstances:

(1) the child is voluntarily relinquished either to
the State agency (or another public agency (including Tribes) with whom the
State has a title IV-E agreement), or to a private, nonprofit agency; and

(2) there is a petition to the court to remove the child from home
within six months of the time the child lived with a specified relative; and

(3) there is a subsequent judicial determination to the effect
that remaining in the home would be contrary to the child's welfare.

Under these circumstances, the AFDC-eligible child will be treated
as though s/he was judicially removed rather than voluntarily
relinquished. If the State agency subsequently determines that the child
also meets the three criteria in the definition of a child with special needs in
section 473(c) of the Act, the child is eligible for title IV-E adoption
assistance. If, however, there is no petition to remove the child from the home
or no subsequent judicial determination, the child cannot be considered
judicially removed for the purpose of title IV-E adoption assistance
eligibility. [Emphasis added].
NOTE: Source/Date: ACYF-CB-IM-01-08 (11-6-01).
This policy went into effect on 11-06-2001.

Does it matter if the judicial determination is made in the first court order pertaining to the removal of the child from the home? Yes, both Ohio rule OAC 5101:2-49-02.1 and Section 8.2B.7 both require that the judicial determination must be made in the first court order that removes the child from the home. In the case of JFS 01645 voluntary agreements, the court is not involved, so, as noted in the previous question, the court determination is made when the child in reviewing the voluntarily relinquishment (permanent surrender).

Section 8.2B.7 states in pertinent part:

Since a child's removal from the home must occur as a result of such a judicial
determination, the determination must be made in the first court ruling that
sanctions (even temporarily) the removal of a child from the home. If the
determination is not made in the first court ruling pertaining to removal from
the home, the child is not eligible for title IV-E adoption
assistance.

What if the Court makes a “best interest” determination?

OAC rule 5101:2-49-02.1 suggests that that “contrary to the welfare of the child” and “best interest of the child” are equivalent judicial determinations by the court. Paragraph (D) of the rule states:

If the judicial determination that continuation in the home would be contrary to
the welfare of the child or the removal from the home is in the best interest of the child is not included in the court order, a transcript of the court
proceedings is the onlyother documentation acceptable to verify that the
required determination has been made. (Emphasis added).

Federal Title IV-E foster care maintenance rules at 45 CFR 1356.22 also indicate that a judicial determination referring to the best interest of the child is the legal equivalent of the determination that continuation in the home is contrary to the child’s welfare. The federal rule addresses eligibility requirements for children that enter custody via a voluntary agreement. Paragraph (b) provides that such children "are eligible for Title IV-E foster care maintenance payments for 180 days of the child's placement in foster care unless there has been a judicial determination by a court of competent jurisdiction, within the first 180 days of such placement, to the effect that the continued voluntary placement is in the best interests of the child."

The purpose of the judicial determination is to ensure the protection of the birth parents’ due process rights and to exercise overview by the appropriate court to verify that the placement decision coincides with the child’s safety and overall best interest. Federal adoption assistance law at 42 U.S.C. 673 refers to the requirement for a judicial determination “to the effect” that “continuation in the home would be contrary to the welfare of the child.” A court review concluding that termination of parental rights and/or placement of the child with X parents would appear to meet the test of a judicial determination which satisfies the eligibility requirements under federal law.

Guidance regarding the requirement for a judicial determination in cases where the child is voluntarily relinquished to a private agency.

In order to avoid controversy, it is advisable for private agencies to employ the literal language of OAC rule 5101:2-49-02.1 in petitioning the court for a judicial determination. The language should be standardized. The following is a possible example.

Sample Judicial Determination Language

After reviewing the facts of the case, we request that the court issue the
following determination in order for __________ (name), a child with special
needs, to qualify for federal Title IV-E adoption assistance. We petition
the court to publish a finding that continuation in the home is contrary to
_______’s welfare and the voluntary relinquishment of the parental rights of
___________ and ____________ leading to the placement of the child with
__________ for the purpose of adoption is in the best interest of the child.

If the judge issues a determination that refers only to the “best interest of the child,” the agency and prospective parents should appeal any decision which denies that the IV-E requirement for a judicial determination has been met. The sections from paragraph (D) of OAC rule 5101:2-49-02.1 and federal regulations at 45 CFR 1356.22 can be cited in the appeal.

Ohio Department of Job and Family Services' Legal Staff Cite the Federal Child Welfare Policy Manual in Adminstrative Appeals of Hearing Decisions

2010-03-08T12:16:00.010-05:00

Ohio Job and Family Services (ODJFS) legal staff have been citing and quoting from the online federal Child Welfare Policy Manual in administrative appeals decisions. The administrative appeal reviews state administrative hearing decisions. ODJFS legal staff serve as administrative review officers. In at lease three instances, provisions of the Child Welfare Policy Manual have served a basis for overruling hearing decisions and finding in favor of the adoptive parents.

ODJFS adoption staff have employed the Child Welfare Policy Manual as the primary reference in revising the state Title IV-E adoption assistance rules scheduled to go into effect on April 1, 2010. The recent trend of ODJFS legal staff to cite the Child Welfare Manual to explain and clarify state adoption assistance rules is a good sign for adoptive parents. Adoptive parents should qoute and cite relevant provisions of the Child Welfare Policy Manual as well as state rules in situations involving their child’s eligibility and in negotiating adoption assistance agreement, as well as in state administrative hearings. The federal manual may be used to:

- Clarify existing state rules, and/or

- Clarify policy when state rules are vague, confusing or non-existent, and/or

- Correct rules that are contrary to federal law.

Example: Negotiation of Adoption Assistance Agreements

Two 2009 ODJFS administrative appeal decisions clarified those criteria and procedures in the OAC rule by finding that the counties in question had failed to negotiate with the adoptive families in compliance with state and federal laws. In elaborating on the requirements for negotiation, the administrative appeal decisions both quoted extensively from Section 8.2D.4 of the federal Child Welfare Policy Manual as follows: “Title IV-E adoption assistance, “stated the appeals decisions

is not based upon a standard schedule of itemized needs and countable
income. Instead, 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.

The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. 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. (Empasis added)

[See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), June 23, 2009 and Docket Number: AA-4651, Appeal No(s) 1499112, December 3, 2009.}

Example: Termination of Adoption Assistance

A more recent appeal involved a case in which the agency moved to terminate a child’s adoption assistance because he was in out of home care and the agency contended that the parents were not providing support for the child. The case was complicated by the fact that the child had turned 18. [See Docket Number AA-5044, Appeal Number 1541862, Decided March 3, 2010].

The parents lost their state administrative hearing even though they presented evidence that the existing adoption assistance agreement had been negotiated from $1,200 per month to $300 per month with $900 going to support their son’s out of home care.

The parent’s also presented testimony that their son was mentally disabled and therefore qualified to receive adoption assistance until the age of 21. In addition, the young man’s case plan called for him to return home to the care of his parents.

In filing for an administrative review, the parents reiterated that they continued to support their son through the revised adoption assistance agreement and by providing additional food and clothing to their son.

The parents cited state rule OAC rule 5101:2-49-13(B), which states:

An adoptive parent(s) is supporting the child when the adoptive parent(s)
provides the child with shelter, food, and clothing. Parents are generally
responsible for the support of their minor child who is under eighteen years
of age or their physically or mentally disabled child who is under the age
of twenty-one.

Then, they turned to the Child Welfare Policy Manual and asked if the rule meant that that the parents had to provide 100% or some other portion of the support? They contended Question 2, Section 8.2D.5 clarifies OAC 5101:2-49-13(B) by posing and answering the following question:

Question: Section 473(a)(4)(B) of the Social Security Act states that no adoption assistance payment can be made, "to parents with respect to any child if the State determines that the parents are no longer legally responsible for the support of the child or if the State determines that the child is no longer receiving any support from
such parents." When is a parent considered to be "no longer legally responsible for support" or not providing "any support" for the child?

Answer: A parent is considered no longer legally responsible
for the support of a child when parental rights have been terminated or when the child becomes an emancipated minor, marries, or enlists in the military.

"Any support" includes various forms of financial support. The State may
determine that payments for family therapy, tuition, clothing, maintenance of
special equipment in the home, or services for the child's special needs, are
acceptable forms of financial support. Consequently, the State may continue the
adoption assistance subsidy, if it determines that the parent is, in fact,
providing some form of financial support to the child. (Emphasis added)

The administrative appeal reviewer found the parents’ argument persuasive, stating “it is unclear why the PCSA [agency] would renegotiate a new adoption assistance agreement” [which significantly reduced the adoptive payment] . . . . and then proposed “to terminate the adoption assistance altogether. . . . .”

Ruling against the proposed termination, the administrative appeal reviewer quoted Question 3, Section 8.2D.5 of the Child Welfare Policy Manual

Question: Can a State agency automatically suspend the adoption assistance
payment for the duration of an adopted child's placement in foster care? The
State agency would reinstate the payment upon the child's return home.

Answer: No. An automatic suspension is, in effect, the equivalent
to a termination of the adoption assistance payment and as such is unallowable
under section 473(a)(4)(B) if the parent remains legally responsible or is
providing any support for the child. However, consistent with section
473(a)(4)(B) of the Act, there may be circumstances in which adoptive parent(s)
may be eligible for payments in a different amount. In these instances, a State
may re-negotiate the agreement and reduce the payment for the duration of an
adopted child's placement in foster care with the concurrence of the adoptive
parent.

Revised Ohio Title IV-E Adoption Assistance Rules Scheduled for Public Hearing

2009-12-17T12:26:00.001-05:00

The revised Ohio Title IV-E adoption assistance rules are finally scheduled for public hearing at 10:00 A.M. on January 6, 2010 in Room 2925 of the Rhodes State Office Tower, 30 East Broad Street, Columbus, Ohio, 43215

For copies of the proposed rules go the Register of Ohio web site at
http://www.registerofohio.state.oh.us/. Click on “Key Word in Title.” Enter “adoption assistance” and select Proposed Rules. A click on Search will take you to the proposed rules.

At first glance, it appears that the proposed revisions remove the significant barriers to eligibility for special needs children placed for adoption by private agencies. Please scrutinize the rules carefully. If you discover changes that should be made, attend the public hearing. It can make a difference.

Unauthorized County Cuts in Funding for State Adoption Subsidies Threaten Support for Adopted Special Needs Children

2009-12-10T15:06:00.003-05:00

The Problem

The recent reduction in the state’s financial participation rate cut state support for the state adoption subsidy program from a maximum monthly payment of $300 to a maximum payment of $240 per month. The reductions in state financial participation in the state adoption subsidy program were the direct result of cuts in the state’s biennium budget. It would appear rather obvious that state budget cuts apply to state funds only, not to budgetary decisions in counties or cities. It is equally obvious that state budget cuts and subsequent emergency rule revisions that reduced state financial participation in the state adoption subsidy program had no effect at all on any supplemental funding voluntarily provided by county agencies to increase state adoption subsidy payments. Nonetheless, some hearing officers and administrative reviewers in the Ohio Department of Job and Family Services’ legal section have arrived at a contrary conclusion.

Although there are conflicting interpretations and hearing results, some hearing officers and administrative reviewers have decided that state budget reductions in the state’s financial participation rate, somehow allows county agencies to make immediate, arbitrary cuts in their supplemental county funding for state adoption subsidies. Through the years, county agencies, certain cases, have signed state adoption subsidy agreements in which they committed supplemental county funds in addition to the money provided by the state. For example, when the state’s maximum participation rate was $250 per month, Wood County signed JFS 01615 state subsidy agreements with separate adoptive families for calling for payments of $350 and $500.per month. Each dollar over the state’s $250 maximum was to be provided by county funds. Cuyahoga, Franklin and a number of other counties also committed supplemental county funds to state adoption subsidies in certain situations where higher levels of support were warranted by the child’s needs and family circumstances. This practice was never challenged. The state adoption subsidy rules in OAC Chapter 5101:2-44 neither require nor prevent county agencies from adding their own funds to state adoption subsidy payments.

Wood County and other agencies now want to use cuts in the state financial participation rates to unilaterally terminate all county support for individual state adoption subsidies as well. If Wood County has its way, children receiving $350 or $500 per month would see their state adoption subsidies reduced to $240, the state’s maximum financial participation rate. In fact, no child in Wood County would receive a state adoption subsidy of more than $240 per month, no matter how many years the county had committed itself to higher payments at the annual subsidy redeterminations, no matter what the child’s level of care or the circumstances of the adoptive family. Incredibly, although none of the changes in the state adoption subsidy program justify such automatic cuts, some state hearing officers and administrative reviewers approve of them.

Why they are wrong: Background

In the recent state biennium budget, the state’s participation rate in the state adoption maintenance subsidy was cut from a maximum of $300 to a maximum of $240 per month. As a result of Executive Order 2009-15S signed by Governor Strickland, emergency revisions were made to adoption subsidy rules 5101:2-44-06 and 5101:2-44-08 in order to put the cuts immediately into effect. The reductions in the state’s participation rate were across the board cuts and included existing as well as future state adoption subsidy agreements (JFS 01615).
The rules changes are now permanent.

Why they are wrong: The recent budget cuts and subsequent rule changes pertained solely to state funding and state financial participation in the state adoption subsidy program

In addition to the blatantly obvious points that the state budget is exclusively concerned with state funding and the adoption subsidy rules focus eclusively on state financial participation limits, there are no rules or ODJFS communications that authorize county agencies to drop their existing support for state adoption subsidies. County agencies and adoptive parents both received the following message in ODJFS communication, entitled, “Important Notice About Your State Adoption Maintenance Subsidy.” It read in pertinent part

"The funding provided for the Ohio Department of Job & Family Services in the recent state budget will allow the department to reimburse us only a maximum of $240 per month per case, rather than $300. Because we do not have sufficient local funding to make up the difference, we are forced to reduce the amount we pay you by terminating any amounts in excess of $240."

ODJFS was obviously referring to reductions in state funding only.

Revised rule OAC 5101:2-44-08 (K), also refers exclusively to state funds.

"When the Ohio department of job and family services (ODJFS) determines that state funds are not available to maintain SAMS program at the current maximum monthly funding level and notifies the PCSA of the unavailability of state funds, the PCSA shall notify any adoptive parent receiving a monthly subsidy that is greater than two hundred forty dollars per child in accordance with rule 5101:6-2-06 of the Administrative Code."

There is no mention of county funds in the revised rules, much less language which authorizes county agencies to immediately terminate their support for existing state adoption subsidies.

Why they are wrong: the revisions to OAC 5101:2-44-06 and 5101:2-44-08 did not change the longstanding procedures for annual redeterminations of state adoption subsidies or for amending state adoption subsidy agreements.

As noted above, state adoption subsidy regulations at OAC 5101:2-44-08 still require an annual redetermination of eligibility. In the case of the Wood County families mentioned above, the agreement for state subsidies of $350 and $500 per month were each initiated in 2002 and each renewed through 2008. For most of that period, until January 2008, the state’s maximum financial participation rate was $250 per month, which meant that Wood County voluntarily committed county agencies funding levels of $150 and $250 per month in a series of signed JFS 01615 subsidy agreements.

The JFS 01615 state subsidy agreement form is structured as a contract. The adoptive parents are expected to meet responsibilities outlined in Section III of the JFS 01615 form. The County in turn, is obliged to comply with provisions regarding the subsidy payment.

OAC 5101:2-44-06 (E) specifies that the amount of the state adoption subsidy should be based upon the needs of the child and circumstances of the family. In accordance with well established procedures in OAC Chapter 5101:2-44, if the a county agency proposes a reduction, it is required to provide formal written notification to the adoptive family, who would then be guaranteed the right to a state administrative hearing. At the hearing, the primary burden would be on the county agency to show that a reduction in its financial participation was warranted by changes in the child’s needs and family circumstances. There are no provisions in the revised rules for a state adoption subsidy to be summarily reduced aside from the cuts in the state’s maximum financial participation from $300 to $240 per month.

ODJFS Legal Services Chief Fails to Answer Inquiry About the State's Legal Obligation to Enforce Adminstration Hearing Decisions

2009-10-27T14:44:00.002-04:00

Note: Please keep me informed about current negotiations for Title IV-E adoption assistance and the outcomes of state administrative hearing decisions involving the negotiation of Title IV-E adoption assistance agreements.

On October 1, 2009, I e-mailed, Lewis George, Chief Legal Counsel for the Ohio Department of Job and Family Services (ODJFS) asking him two basic and related policy questions:

1. Did ODJFS have a legal responsibility to enforce state administrative hearing decisions?

2. Assuming that ODJFS, as the designated state IV-E agency, had such a responsibility, what steps would it take if a county agency did not comply with a lawful hearing decision and order.

As you can readily see in the exchange of e-mails, Mr. George did not really answer the policy questions, even after I presented reasons why I believed that ODJFS not only had an obligation to enforce state administrative hearing decisions, but placed the state’s federal IV-E funding at risk if it failed to do so.

Mr. George, after suggesting that he could not answer my questions because each case “had a different fact pattern," offered to work with my in resolving noncompliance by county agencies if I obtained the permission of the appellate adoptive parents. I thanked him and accepted his offer, but also insisted that that the hearing process itself was designed to resolve substantive disagreements in individual cases. My questions, on the other hand, involved basic and answerable policy matters that are essential to the well being of special needs adoptive children.
To this date, I have received no further response from Mr. George on pending individual cases or the broader policy questions.

E-Mail to Mr. Lewis George, October 1, 2009

I am writing to pose a series of questions. Is ODJFS legally responsible for enforcing state administrative hearing decisions and administrative review decisions involving the negotiation of adoption assistance agreements? If so, what actions must be taken if a county does not comply within stated timelines or refuses to comply at all? I assume that ODJFS has a number of options, including contact with County Commissioners and ultimately the withholding of federal funds. Is that your understanding?

Please respond to my questions in a timely fashion. They have important consequences for special needs adopted children and for the integrity of the federal IV-E adoption assistance program. The longer that negotiation of adoption assistance requirements are ignored and not enforced, the faster the program will reach a crisis point.

You have perhaps seen my arguments. Here they are again. As you know, when adoptive parents appeal a decision regarding the negotiation of an amount of adoption assistance and prevail, the hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child needs and family circumstances as prescribed in state and federal law. Most hearing orders contain a time frame for compliance.

For example, in the Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE), the reviewing officer found against Clinton County and ordered the agency to negotiate with the adoptive parents. In issuing the order, which was signed by the Head of ODJFS Office of Legal Services, the reviewing officer noted:

The agency is the one with the expertise to make this initial judgment, but it is clear that its judgment has been clouded by extraneous factors because the subsidy figures in the record thus far defy explanation. For example, the agency paid your previous adoptive family $600 per month, but then reduced its initial offer to you to $450, then reduced it further to $300 when it appeared that no agreement was forthcoming. While we agree with the hearing officer in principle that the previous payment of $600 does not necessarily set either the floor or ceiling in your case, at the very least the agency has some obligation to explain a halving of this amount in your current household. Further, if its offer of $450 was justified at an early stage of your negotiations, how have your needs and circumstances now changed to merit a reduction of that amount by another one-third? For these reasons, we agree with the Statement of Error based on misapplication of rule.

To this date, October 1, 2009, no negotiations have taken place. In Delaware County, no negotiations have taken place following two hearings, the first which took place in 2006.

At least one parent has been told that there is nothing ODJFS can do to enforce hearing decisions when the county refuses to comply. I cannot see how this can be the case for the following reasons.

1. The Code of Federal Regulations at 45 CFR 205.10 guarantees applicants and recipients of Title IV-E adoption assistance due process rights. There is no due process when counties are free to ignore adverse hearing decisions.

2. Federal laws pertaining to the obligations of states under IV-E state plan requirements indicate that the IV-E agency (ODJFS) has full responsibility for oversight and consistent administration of the adoption assistance program.

Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—

(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;

(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;

(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;

(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;

(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;

Surely, enforcement of hearing decisions is included in the above oversight requirements.

Finally, counties that refuse to comply with hearing decisions are violating Ohio law. Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.” Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.”

Tim O'Hanlon

Response from Lewis George to: What Are The Obligations Of ODJFS To Enforce State Administrative Hearing Decisions Regarding The Negotiation Of Adoption Assistance Agreement? October 6, 2009

Mr. O'Hanlon:

I have received and read your email dated October 1, 2009, and as we discussed, when we met in person, I appreciate your passionate views regarding this subject. My opinion continues to be that these cases are best resolved on a case by case basis. As you are aware, each case is
different based on the fact pattern.

The Ohio Department of Job and Family Services will be happy to discuss and answer any questions you may have regarding specific cases pending state hearings based on receipt of the federal IV-E adoption assistance program. However, you would need to provide evidence of your authorization to represent the families in those specific cases prior to any information being shared or discussed. Again, I encourage you to provide specific case information so that we may all work together to resolve any issues.

Sincerely,

Lewis George, Chief Legal Counsel

Tim O’Hanlon 's Response to Mr. George, October 6, 2009

Dear Mr. George,

Thank you for your offer. I think I will take you up on it. You should be hearing from at least two adoptive parents soon.

I do think, however, that there is a clear difference between the merits of individual cases and the important policy questions:

1. Does ODJFS have a legal responsibility to enforce state administrative hearing decisions, administrative review decisions, which have been decided on the merits, if the county agency does not comply? I believe that the obvious answer is yes.

As the state's IV-E agency, ODJFS should be able to define its responsibility to enforce state administrative hearing decisions involving Title IV-E adoption assistance. The hearing and administrative appeal decisions decide the merits of the appeal. The question of ODJFS' obligations to ensure adequate due process is a general policy issue which sets the context for the resolution of individual appeals.

2. The next question is a bit more complicated, but still capable of an answer. What steps may and will ODJFS take to enforce hearing and administrative review decisions in cases of county non-compliance. At heart, this question asks, what will ODJFS do to ensure the due process assured adoptive parents in federal law?

If these questions are not addressed, a number of county agencies will feel free to completely ignore hearing decisions and orders, especially ones involving the negotiation of adoption assistance agreements. As non-compliance increases, the integrity of the program is diminished and ODJFS places its access to IV-E funding at risk.

Tim O.

Will the Ohio Department of Job and Family Services Enforce State Adminstrative Hearing Decisions Against Counties?

2009-09-17T14:00:00.015-04:00

I ask parents and advocates to e-mail officials at the Ohio Department of Job and Family Services (ODJFS) and ask them what actions they will take to enforce hearing decisions when the county agency refuses to comply. See the suggested language below. One county described below is openly defying an Administrative Review Order by the ODJFS Legal Services Director to re-0pen IV-E adoption assistance negotiations with an adoptive family. A parent in another county reported that the agency has thus far refused to comply with two sets of hearing orders, the first dating back to 2006.

The Problem

In previous posts, I have expressed concern about the following:

1. Ohio County agencies refusing to negotiate Title IV-E adoption assistance agreements over $240 per month in light of budget cuts in the state financial participation rate which went into effect on September 1, 2009. In previous posts, I have argued that counties taking this position are in violation of federal and state laws.

2. Although the appeals of adoptive parents in opposition to such county policies have been and will continue to be successful, will the Ohio Department of Job and Family Services (ODJFS) enforce hearing decisions which order counties to continue negotiations until a fair and adequate agreement for adoption assistance is reached.

3. As county agencies step up resistance to the lawful negotiation of adoption assistance agreements, there will be a concomitant growth in the defiance of hearing orders.

4. To this point, there is no evidence that ODJFS has taken any action to enforce hearing decisions against non-compliant county agencies. Worse still, there is some evidence that ODJFS has no intention of taking enforcement action and maintains the position that it lacks the authority to enforce state adminstrative hearing decisions. I believe that this view would come as surprising news to federal officials at the Adminstration for Children and Families.

Clinton County's Refusal to Comply

I received an e-mail from a adoptive parent reporting that after several months, Clinton County has refused to enter into Title IV-E adoption assistance negotiations. The county is defying both state administrative hearing decisions and an administrative appeal signed by the head of the Office of Legal Services at ODJFS.

Citing Section 8.2D.4 of the federal Child Welfare Manual the ODJFS legal services reviewers wrote.

"Although it may be tempting in these trying financial times to also take into account the agency’s other financial circumstances, that factor is not part of the rule other than the overall ceiling of the maximum foster care payment limit. In fact, the federal agency overseeing the program has opined that 'Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements.' "That agency has also opined as follows:

'Title IV-E adoption assistance is not based upon a standard schedule of itemized
needs and countable income. Instead, 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.

The circumstances of the adopting parents must be considered together with the
needs of the child when negotiating the adoption assistance agreement.
Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. 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.'" (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE).

The administrative reviewers issued an "order of compliance" to schedule another negotiation and "absent any agreement with you on a subsidy amount retroactive to your application, issue written notification to you setting forth in detail the manner in which its subsidy offer satisfies your needs and your family’s circumstances."

The agency has refused to take any action in spite of contact from the Bureau of State Hearings at ODJFS. The adoptive parent wrote she was informed by Bureau of State Hearing Staff that there was nothing ODJFS could do to enforce its hearing decisions.

I have registered my strong disagreement with this position in previous posts.

The Responsibility of ODJFS to Enforce State Administrative Hearing Decisions

Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.”

Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.” When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis in fact or in law, it is clearly defying Ohio law.As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.

Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—

(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;

(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;

(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;

(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law; . . . .

(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders.

The Code of Federal Regulations at 45 CFR 205.10 guarantees due process appeal rights to adoptive parents. The right to a hearing is meaningless if county agencies are free to defy hearing orders without fear of consequences.

ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties. Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.

Please Write ODJFS and Other Officials

Please pose the following issue. Clinton County is openly in defiance of an Administrative Review Order issued by the ODJFS Office of Legal Services on June 23, 2009. (Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The appellant parent has been told that there is noting ODJFS can do about it. The refusal to enforce administrative hearing decisions makes a mockery of the due process rights guaranteed under Code of Federal Regulations 45 CFR 205.10. It violates ODJFS' own state administrative hearing rules and the IV-E State Plan responsibilities provided in federal law at 42 U.S.C. 671. Federal IV-E funding is contingent on the performance of these responsibilities.

As adoptive parents of special needs children we have the right to ask and receive a clear response to the question of what specific actions ODJFS will take to enforce state administrative hearing orders against non-compliant county agencies. Our children's well being is at stake and we deserve a prompt response.

Contacts

Sandra Holt, Deputy Director ODJFS Child and Family Services, Sandra.Holt@jfs.ohio.gov,
Charles Preston, Governor's Office, charles.preston@governor.ohio.gov,
Lewis George, Director, Office of Legal Services, lewis.george@jfs.ohio.gov,
Bob Frankart, Senior Attorney, Office of Legal Services, bob.frankart@jfs.ohio.gov,
Donna Vargo, Head, ODJFS, Bureau of State Hearings, donna.vargo@jfs.ohio.gov,
Armond Budish, Ohio House Majority Leader <district08@ohr.state.oh.us>,
Wiiliam Batchelder, Ohio House Minority Leader <district69@ohr.state.oh.us>,
Ted Celeste, Ohio House Representative <district24@ohr.state.oh.us>
Josh Kroll, North American Council on Adoptable Children Subsidy Specialist, joshk@nacac.org

Crawford County Threatens to Cut Title IV-E Existing Adoption Assistance Payments and Stop Negotiating Future Adoption Assistance Agreements

2009-09-14T12:37:00.003-04:00

Crawford County has sent letters adoptive families with Title IV-E adoption Assistance essentially informing them they may receive a $60 per month cut in their children’s adoption assistance payments in the wake of the state’s reduced financial participation in the federal Title IV-E adoption assistance program from monthly payments of up to $300 to monthly payments of $240. Taking a page out Lorain County’s play book, Crawford also asks adoptive parents to sign an amended IV-E adoption assistance agreement. (See a copy of the letter below). Finally, the agency signals that it might be able to negotiate future adoption assistance payments over $240 per month.

The letter, after apologetically requesting that parents voluntarily absorb the reduction in adoption assistance ends by stating “This modification may be reflected in your October 2009 check.” Further, “If you do not agree to do this reduction, you do have the right to appeal this to the State;. . .” I urge parents to respond. Unless they wish a reduction in their child’s Title IV-E adoption assistance payments, I strongly recommend:

a. Do not sign the amended adoption assistance agreement.

b. Write the agency an e-mail, stating clearly, “I do not consent to any reduction in ______ Title IV-E adoption assistance because it would be contrary to his/her welfare and would not reflect his/her needs or our family circumstances."

c. Support your objection to any reductions with the arguments below.

Errors? Let Us Count Them

1. The County agencies have already been informed that federal law forbids them to automatically and unilaterally reduced existing adoption assistance payments. The Director of the Ohio Department of Job and Family Services (ODJFS) citing Section 8.2A of the federal Child Welfare Policy Manual the policy informed the counties that they were not authorized to cut existing adoption assistance payments without the consent of the adoptive families.

2. Adoptive families receiving this letter are under no obligation to respond unless they receive a formal notification of a reduction in benefits. Since Crawford County may not realize this, parents are urged to respond with the points cited here.

3. State administrative hearings are based on a denial of benefits. There are no grounds for a hearing. If Crawford County attempts to reduce special needs children’s adoption assistance benefits, they must send individual families written notification, citing what assistance is being denied, the reasons, the applicable laws or regulations, along with information on requesting a hearing. Once again, I am curious as to what grounds and rules the agency would cite in support of its proposed actions.

Section 8.2A of the federal Child Welfare Policy Manual clearly indicates that budget problems are not sufficient grounds for automatically reducing IV-E adoption assistance payments. OAC 5101:2-49-12(B) states in pertinent part “any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family.”

4. The proposed cut of $60 per month in adoption assistance does not reflect the actual loss to the county agency. The federal financial participation rate in IV-E adoption assistance has risen from 60% to 68.34% of the cost of monthly adoption assistance payments.

The state and counties’ participation rates in providing non federal matching funds has fallen from 40% to 31.66% of the cost. The cost to the county for the recent reduction in the state’s financial participation rate from monthly adoption assistance payments of up to $300 to payments of up to $240 is approximately $20 per month. The county’s non federal share for every dollar over $240 per month is actually lower than it was a year ago.68.34% of the $60 dollars is federal money.

5. If a county agency proposes reductions and force adoptive parents to appeal, the county will lose, embarrass itself and incur a considerable amount of ill will.

6. Crawford County has an obligation under federal and state law to negotiate future Title IV-E adoption assistance agreements based up a consideration of the needs of the child and circumstances of the adoptive family. Counties have no authority to simply declare “ I will not negotiate.”

Crawford County Letter

Thomas M. O'leary, Director
Income Maintenance * Workforce Development * Child Support Enforcement * Children
Services

Crawford County Job and
Family Services
224 Norton Way
Bucyrus, Ohio 44820
Phone-419-562-0015

Crawford County Children
Services
865 Harding Way West
Galion, Ohio 44833
Phone-468-3255
Fax-419-468-6771

As you may be aware, the State of Ohio has made significant budget cuts which
have impacted many programs and services. These cuts included several
sources of adoption funding and subsidies, as well as overall funding to county
Job & Family Services Departments. Crawford County Department of Job &
Family Services cannot make up for the loss of the state's support for adoption
Subsidies. We find ourselves in the difficult position of needing to renegotiate all
of the county's adoption subsidy agreements.

The notice we sent on 8/14/09 was sent in error and it only pertained to the Stated
Adoption Maintenance Program (SAMS). At this time we are requesting a renegotiation
of your Title IV-E Adoption Subsidy.

It has never been this agency's desire to cut the adoption subsidies which help
families to meet their child's special needs. However, the current economic
situation has hit everyone, including state and local government offices. Your
adoption worker negotiated your subsidy amount with you in good faith,
understanding that your child has specific special needs. Crawford County
Department of Job & Family Services agreed to that amount believing that the
state and federal governments would continue to provide their financial backing
for this program. The state's recent actions have made it clear that this agency
is vulnerable in ways not previously anticipated.

Since the state has indicated that it will provide $240 towards each Adoption
Assistance Agreement, we are sending you anew Adoption Assistance
Agreement form and a new IV-E Adoption Assistance Continuing Eligibility
Determination form. The new agreement form reflects a reduction in state
support. Whether or not you have already returned the form sent earlier this
month, we ask you to review this form. If you are willing to accept the revised
change to your child's monthly subsidy, please sign both forms where they are
highlighted, and return the forms in the envelope provided.

This month, your child's total subsidy amount was ______. You will receive
your subsidy a little different now that the State has reduced the amount they
are paying. You will receive a check with the reduced amount from the State and
a check from our county auditors. You may receive a W-9 in this letter for
payments made by our county if we do not have one on file for your family.
We regret the need to request any concessions from the adoptive families that
we know are working hard to meet their children's regular and often very special
needs. We do not take this action lightly.

If we do not find a way to get current costs under control, we may not be able to negotiate anything higher than the state's new base rate with new adoptive families, regardless of the severity of their children's special needs. Your help now may help us find homes in the future for children with special needs.

This modification may be reflected in your October 2009 check. If you accept the
suggested modification, (Child’s Name ) total subsidy amount will be ($60 less).
If you do not agree to do this reduction, you do have the right to appeal this to the
State; please call Sue Bauer at 419-468-3255 at ext. 250.
~~'--~
Sue Bauer
Foster Care/Adoption Coordinator

Lorain County Alters IV-E Adoption Assistance Agreement Form and Asks Adoptive Parents to Surrender Their Rights

2009-09-11T16:26:00.004-04:00

Lorain County Children Services has taken the bold and cynical step of asking adoption parents to voluntarily surrender their right to negotiate adoption assistance agreements. Instead, they are asked to accept “corresponding reductions” in their adoption assistance payments if the state reduces it’s level of financial participation in the Title IV-E adoption assistance program. In essence, adoptive parents are being asked to accept possible reductions in their children’s adoption assistance payments, no matter what changes in their child’s needs and family circumstances may occur. In doing so, they would give up negotiation rights guaranteed by federal and state law.

Lorain County recently sent adoptive parents of special needs children receiving Title IV-E adoption assistance payments a letter and an amended JFS 01453 Title IV-E Adoption Assistance Agreement form. The letter points to three new provisions on the form which parents are asked to sign. The three provisions do not appear in federal or state law, nor were they approved by the Ohio Department of Job and Family Services (ODJFS) making the altered form essentially illegal. NOTE: E-Mail me for a copy of the letter and the altered form.

By signing the made up form, the parents would agree to the following:

a. The county is not responsible for any financial participation (funding) above its “current match dollar amount.”

b. The parents agree that if the state reduces its financial participation in the Title IV-E adoption assistance program, that they (the parents) will accept a corresponding “proportional reduction” in their adoption assistance payments.

c. The parents accept that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments.

Parents that decline to sign are told to request a state administrative hearing, which constitutes a clear abuse of power on the part of Lorain County, particularly in the wake of ODJFS Director Lumpkin’s letter forbidding counties to make automatic deductions in existing adoption. assistance agreements. Parents are not obliged in any way to sign an amended adoption assistance agreement, especially one with provisions that are not sanctioned by law. Furthermore, there are no grounds for a state administrative appeal, because there is no explicit denial of benefits. If you inadvertently signed such a document, please contact me or another advocate. It is doubtful that such an unsanctioned document can be enforced.

The altered provisions in the form are designed to get around the problem that an adoption assistance agreement may not be automatically amended without the consent of the parents. Not only are parents being asked to give up the basic right to negotiate adoption assistance agreements, but the added language is far from clear. Even if a parents were deceived into signing such a document, no one would know what they were signing. Lorain County’s intentions are somewhat obvious, but the language doesn’t get them there. Neither, of course, does the employment of an unapproved form and the attempt to violate adoptive families’ due process rights.

What is a “current dollar match amount?” Adoption assistance agreements can be negotiated up the level of support he or she would receive were they in a foster home suitable to their level of care. There is no such thing as a “current dollar match amount.”

The statement that a county is not responsible for the federal or state portion of IV-E adoption assistance payments is a truism. Federal and state financial participation rates are set by law. The county portion is part of the negotiation process.

What is a “corresponding reduction” of an adoption assistance payment? Does it include the federal share which is 68.34% of the overall cost.

The sample letter below is designed to help parents respond to dubiously “ethical” proposals such as the one proffered by Lorain County. Feel free to use any portion of the sample you wish. Please contact me if you receive any other suspicious correspondence. If it smells bad, it probably is bad. We are documenting actions that are out of compliance with federal law.

Recommended Letter Rejecting the County’s Proposal

Dear _______,

I recently received a letter and an amended JFS 01453 Title IV-E adoption assistance agreements form. The letter asks parents to sign statements agreeing that:

The county is not responsible for any financial participation (funding) above its “current match dollar amount.”

The parents agree that if the state reduces its financial participation in the Title IV-E adoption assistance program, that they (the parents) will accept a corresponding “proportional reduction in their adoption assistance payments.

The parents accept that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments.

I am not willing to sign the amended adoption assistance agreement form for a number of reasons, including the following:

1. Lorain County has illegally altered a state Title IV-E adoption assistance agreement form. There are no provisions in either federal or state law which require or request adoptive parents to pledge that any reductions in state financial participation in the federal adoption assistance program absolve the county agency from any financial responsibilities.

The Director of the Ohio Department of Job and Family Services recently sent a letter to Lorain County and all Ohio agencies affirming the federal policy that county agencies could not make unilateral, automatic reductions in existing Title IV-E adoption assistance payments without the parents consent. I suppose the strategy here is to get around requirements to negotiate initial and amended adoption assistance agreements by getting the parents consent for the county to make automatic reductions in the future no matter what the needs of the child and circumstances of the family.

2. Signing this agreement could be used as a ploy to reduce our current adoption assistance payments.

3. For good reason, federal and state law require that requests for additional adoption assistance and modifications of existing Title IV-E adoption assistance agreements be negotiated based upon the needs of the child and circumstances of the family. In-as-much as no one knows what the future holds, it is clearly contrary to our children’s welfare to authorize an automatic reduction in their adoption assistance payments if the state reduces its financial participation in Title IV-E adoption assistance.

4. As economic conditions worsen, the federal financial participation rate in Title IV-E adoption assistance increases. The federal financial participation rate in IV-E adoption assistance has risen for 60% to 68.34% of the cost of monthly adoption assistance payments. The state and counties’ participation rates in providing non federal matching funds has fallen from 40% to 31.66% of the cost. The cost to the county for the recent reduction in the state’s financial participation rate from monthly adoption assistance payments of up to $300 to payments of up to $240 is approximately $20 per month. The county’s non federal share for every dollar over $240 per month is actually lower than it was a year ago.

5. The provisions in the altered form are not at all clear. What does the agency’s “current dollar match amount” mean? There is no set amount. Adoption assistance payments are negotiated. The county’s matching participation rate, as noted above, is 31.66% for each dollar over $240 per month up to the child’s appropriate foster home rate. What is a corresponding reduction in adoption assistance if the state lowers it’s financial participation rate? As noted above, the state’s reduction in participation from a maximum of $300 per month to a maximum of $240 per month, cost counties about $20 per month. The remainder is absorbed by federal dollars. Is a “corresponding reduction” $20 or $60?

Finally, the statement that the county is in no way responsible for the federal or state portion of Title IV-E adoption assistance payments makes no sense unless it is taken as a truism. The federal portion is determined by the same formula as Medicaid. The state portion is determined by state law. The county’s actual payment is determined by negotiation.

6. A county cannot arbitrarily opt out the responsibility to negotiate adoption assistance agreements. Federal and state laws pertaining to the negotiation of adoption assistance agreements remain the same.

7. The form represents a cynical attempt to induce parents to surrender their right to negotiate future adoption assistance agreements, a right guaranteed by federal law.

8. Questions involving the state’s and county’s responsibilities for providing the non-federal matching funds for Title IV-E adoption assistance are matters that must be resolved by state and county governments and state law. It does special needs children a great disservice to ask their parents to solve the county’s financial problems. The county children services agencies are represented by the Public Children Services Association of Ohio, (PCSAO), an organization which traditionally has a great deal of influence with ODJFS. You should take the matter up with them.

9. We are under no obligation to sign this amended and illegal adoption assistance form. Since we do not consent to reductions in our children’s adoption assistance payments. Lorain County is attempting to induce us to sign an illegally altered adoption assistance agreement. State administrative hearings are based on a denial of benefits. There are no grounds for a hearing. If Lorain County attempts to reduce our children’s adoption assistance automatically, without our consent in defiance of federal law, state law and the letter by ODJFS’ Director Lumpkin, explicitly forbidding such action, we will appeal, you will lose and we will expose this cynical attempt to save money at the expense of special needs children.

ODJFS Must Require County Agencies to Negotiate Title IV-E Adoption Assistance Agreements in Accordance with Federal and State Laws and Enforce State

2009-09-03T13:51:00.003-04:00

The next challenge facing adoptive families and advocates across Ohio can be captured in the following scenario. There are already indications that county agencies are determined not to negotiate IV-E adoption assistance agreements and to insist that Adoptive parents settle for adoption assistance payments of no more than $240 per month, even in cases where they have been foster parents of a child with a specialized level of care receiving monthly foster care support of more than $1,000.

An even bigger concern is whether the Ohio Department of Job and Family Services (ODJFS) will enforce state administrative decisions in which adoptive parents successfully appeal. One ODJFS official confided to us that there was nothing that could be done when a county defied a hearing order, which is hardly the case.

Please inform me and copy the following officials at the end of this message if the any of events depicted in the scenario happen to you. I am collecting documentation so please-mail hearing decisions, e-mail messages, letters or summaries of agency officials’ statements to you. I will help with the preparation of negotiation sessions and hearings.

Scenario of County and/or ODJFS Non-Compliance

1. The county agency refuses to negotiate (that is go beyond $240 per month for IV-E adoption assistance, which is contrary to federal and state law; and/or

2. The agency talks with the parents, but does not actually negotiate. The agency refuses to recognize any expense, condition, situation, service put forth by the parent as legitimate in determining adoption assistance. The agency’s arbitrary position has no basis in federal or state law. This behavior too is against federal and state law which requires negotiations to consider ordinary as well as special needs, anticipated as well as current needs and overall family circumstances defined as incorporation of the child into a permanent family. It results in the agency's insitence on adoption assistance payments hundreds of dollars lower than the child's foster care rate.

3. The parents appeal and their appeal is sustained (upheld). The hearing order remands the case for further negotiation, clearly implying that the county has not met its obligation and the amount proposed by the county agency is is too low. The hearing order specifies that the county agency must negotiate based upon a consideration of the child's needs and family circumstances as prescribed in state and federal law.

4. The agency stalls, demands irrelevant information or in some cases simply refuses to comply. It has no fear of ODJFS.

5. Such refusal is in direct defiance of state hearing laws. Also, adoptive parents are guaranteed due process rights in the Code of Federal Regulations at 45 CFR 205.10. Federal law addressing states' IV-E plan requirements obligates ODJFS to administer the IV-E program across political subdivisions and to exercise oversight.

County Non-Compliance in Negotiating Title IV-E Adoption Assistance Agreements

County agencies that refuse to negotiate will usually lose state administrative hearings following appeals brought by adoptive families. When the adoptive family’s appeal is sustained the hearing decision typically order the county to resume negotiations. The order is issued with the clear understanding that the agency will negotiate an adoption assistance agreement based on a consideration of the needs of the child and circumstances of the family as set forth in Ohio rule 5101:2-49-05 and amplified in Section 8.2D.4 of the federal Child Welfare Policy Manual.

Although hearing officers are reluctant to set rates, an order to renegotiate, clearly indicates a determination that the amount proposed by the county agency is insufficient. If it were not, there would be no need for further negotiation. Until recently, an order to renegotiate usually led to an agreement for an amount of adoption assistance that more closely reflected the child’s needs and family circumstances.

Now, faced with tight budgets, we have seen some instances of county agencies, not only refusing to negotiate adoption assistance agreements in accordance with federal and state laws, but continuing to drag their feet and to resist good faith negotiations in response to state administrative hearing orders. While such practices may not constitute a large scale trend as yet, they must be stopped before the majority county agency directors assume that they can get away with anything without consequence.

ODJFS Non-Compliance with Enforcement of State Administrative Hearing Decisions

Ohio hearing rule OAC 5101:6-7-01(H) states firmly that “State hearing decisions shall be binding on the agency or managed care plan for the individual case for which the decision was rendered.” Hearing rule OAC 5101:6-7-03(A) notes, “When the hearing decision orders action to be taken by the local agency, the local agency that is ordered to take the action is responsible for promptly and fully implementing the decision.”

When an agency refuses to change its position following an order to continue negotiating an adoption assistance agreement and can provide no basis for its position in fact or in law, it is clearly defying Ohio law. As the state’s authorized IV-E agency, ODJFS is responsible for ensuring that county agencies abide by federal and state adoption assistance laws.

Federal law at 42 U.S.C. 671 describes the required features of IV-E state plans, which each state must submit for approval to the federal government as a condition for federal financial participation. Several features of the IV-E State Plan point directly to the ODJFS’ responsibility to ensure that county agencies comply with applicable federal and state laws. Section (a) provides: “In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which—

(1) provides for foster care maintenance payments in accordance with section 672 of this title and for adoption assistance in accordance with section 673 of this title;

(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this subchapter shall administer, or supervise the administration of, the program authorized by this part;

(3) provides that the plan shall be in effect in all political subdivisions of the State, and, if administered by them, be mandatory upon them;

(4) provides that the State shall assure that the programs at the local level assisted under this part will be coordinated with the programs at the State or local level assisted under parts A and B of this subchapter, under subchapter XX of this chapter, and under any other appropriate provision of Federal law;

(7) provides that the State agency will monitor and conduct periodic evaluations of activities carried out under this part;

It is no secret that ODJFS has been lax in its oversight of county agency practices in negotiating adoption assistance agreements and complying promptly with hearing orders. ODJFS has a number of options, not the least of which is cutting off federal funds to non-compliant counties.

Failure to enforce state administrative hearing decisions, would appear to place the Ohio’s federal funding for Title IV-E in jeopardy, which is more than sufficient incentive for reigning in non-compliant counties.

Criteria and Procedures for the Negotiation of IV-E Adoption Assistance Agreements Have Not Changed

Laws governing negotiations of Title IV-E adoption assistance agreements remain the same in the wake of recent budget changes. As we have noted previously, the financial burden on the county agencies resulting from the reduction in the state’s financial participation in federal adoption assistance payments is not as severe as it might appear at first glance. The federal financial participation rate has been 68.34% since April, leaving the counties financial share at 31.66% of any adoption assistance payment over $240 on or after September 1, 2009.

In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’ legal services staff, cited the federal Child Welfare Policy Manual on three separate occasions. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The most striking quote was taken from Section 8.2D.4 of the Child Welfare Policy Manual with addresses the negotiation of adoption assistance agreements. The first sentence reads as follows: “Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income.”

Some Ohio counties insist on adding up an “itemized” list of expenses that the agency deems acceptable. The quotation in the recent Administrative Appeal decision continues:

"Instead, 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.

The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement. Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. 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."

The Administrative Appeal Decision was signed by the Head of the ODJFS Office of Legal Services as well as the reviewer.

Contacts

Please contact:

Lewis George, Head of the ODJFS Office Legal Services at lewis.george@jfs.ohio.gov ,

Robert Frankart, Senior Attorney ODJFS Office of Legal Services at bob.frankart@jfs.ohio.gov ,

Donna Vargo, Head of the Bureau of State Hearings at donna.vargo@jfs.ohio.gov ,

Sandra Holt, Deputy Director of the ODJFS Office of Children and Family Services at sandra.holt@jfs.ohio.gov .

Also, Armond Budish, Speaker of the Ohio House at district08@ohr.state.oh.us

Ted Celeste, Representative, Ohio House, Columbus/Grandview area at district24@ohr.state.oh.us

William G. Batchelder, Minority Leader Ohio House of Representatives at
district69@ohr.state.oh.us

Charles Preston, Governor’s Office at charles.preston@governor.ohio.gov

Please express your concern as applicable that:

1. County agencies are not negotiating Title IV-E adoption assistance agreements based on the broad needs of the child and overall circumstances of the family as required by OAC rule 5101:2-49-05 and Section 8.2D.4 of the Child Welfare Policy Manual which clarifies that rule.

2. When hearing decisions order county agencies to renegotiate the adoption assistance agreement, sustaining the adoptive family’s appeal, there is a tacit recognition that the original amount proposed by the agency was an insufficient reflection of the child’s needs and family circumstances. Now, some county agency’s are openly defying hearing orders, which is clearly against state law and a violation of ODJFS’ responsibility under federal laws governing IV-E State Plans at 42 U.S.C. 671. Continuing non-compliance with hearing decisions would appear to place Ohio’s IV-E federal funding at risk.

Add any relevant personal experiences. Mention that everyone in Ohio is experiencing economic hard times, not just agencies and tight budgets are not a valid justification for ignoring federal and state law. Use any portions of the blog that you find useful.

3. Urge/demand that ODJFS:

a. Enforce laws governing the negotiation of adoption assistance agreements uniformly across political subdivisions as required by federal law.

b. Enforce hearing decisions, especial those involving county agencies to renegotiate in good faith with adoptive parents. Mention, that if certain unfair and dubious practices among county agencies continue to grow, that adoptive parents across the state are going to take their case to the federal Administration for Children and Families and to Children’s Rights in New York, which has litigated a number of child welfare cases.

ODJFS Director Sends Letter to County Agencies Informing Them That They May Not Reduce Existing Adoption Assistance Payments

2009-09-01T13:48:00.006-04:00

Douglas E. Lumpkin, Director of the Ohio Department of Job and Family Services (ODJFS) has written a procedure letter stating that Ohio County Agencies may not make automatic or across the board cuts in existing Title IV-E adoption assistance payments. The letter is being sent to all Ohio County Agencies and appears below.

The ODJFS announcement is good news for those advocates and parents across the state that have been taken the position that Title IV-E adoption assistance agreements are contracts and may not be amended without the consent of the adoptive family that is a party to the contract. Anyone that receives a notice lowering a current adoption assistance payment should show the ODJFS letter to their case worker and if the matter isn't resolved right away, request a state administrative hearing. Information on requesting a hearing appears on previous blogs.

Having addressed one major issue, we must now focus on county agency's willingness to negotiate Title IV-E adoption assistance agreements from this point forward. See the previous blog of August 26, 2009 entitled "Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t."

Adoptive parents will win hearings in which county agencies refuse to negotiate. The problem then is what actions will the Ohio Department of Job and Family Services take to enforce the hearing decisions. Compliance with hearing decisions is required by Ohio law.

ODJFS Letter

Here is the text of the ODJFS letter. NOTE: The letter cites Section 8.2D.4 of the federal Child Welfare Policy Manual as source of authority. We have been arguing for years that the state and counties are obliged to adopt policies that are compatible with the Child Welfare Policy Manual and that the Manual clarifies and sometimes corrects existing Ohio regulations. It appears that this view is gaining acceptance at ODJFS.

Family, Children and Adult Services Manual Procedure Letter No.

TO: Family, Children and Adult Services Manual Holders

FROM: Douglas E. Lumpkin, Director

SUBJECT: Modification of the JFS 01453 "Adoption Assistance Agreement"
It has come to our attention that the prescribed JFS 01453 "Adoption Assistance Agreement" may have been modified by one or more public children services agencies recently. While we do not know whether any agency has attempted to use a county-modified form, we are sending this communication to ensure that all agencies discontinue any attempts at modifying this ODJFS-prescribed form.

Revised Code Section 5101.141(B) specifies that ODJFS adopt rules to implement its authority as the single state agency to administer federal payments for Title IV-E adoption assistance. “A public children services agency to which the department distributes Title IV-E funds shall administer the funds in accordance with those rules.”

OAC Chapter 5101:2-49, the rule chapter that ODJFS adopted to implement the Title IV-E adoption assistance program, requires the specific use of the JFS 01453. This ODJFS-prescribed form can be found at http://www.odjfs.state.oh.us/forms/results1.asp. Pursuant to 5101:2-49-06 paragraph (A) the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006) must be signed by both the adoptive parent(s) and the public children services agency (PCSA) for each child receiving Title IV-E adoption assistance (AA) payments. This is a prescribed form for receiving Adoption Assistance payments.

ODJFS has been made aware that one or more PCSAs may be modifying the JFS 01453 by adding a provision that the adoption assistance payments are “subject to the availability of federal and state funds. Any reduction in federal or state financial participation will automatically reduce the adoption assistance payment in an equal amount." In addition, the modified form may require that the adoptive parent check-off that the parent agrees “that any reduction in federal or state funds will automatically reduce this amount in an equal manner.”

Additionally, a modification to the JFS 01453 is a violation of OAC rule 5101:2-49-06. The U.S. Department of Health and Human Services has indicated in its Child Welfare Policy Manual that any such statements in an adoption assistance agreement violates sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. See http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/policy_dsp.jsp?citID=12

As required by federal law, any modification/amendment of the Title IV-E AA payment amount must be made with the concurrence of the adopting parents(s) based on changes in circumstances of the adopting parents and needs of the child. When the parties agree to a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. A copy shall be given to the adoptive parent(s) and a copy shall be retained by the PCSA. Office of Family and Children, Bureau of Child Welfare Monitoring, Child Protection Oversight and Evaluation (CPOE) section will be monitoring a sample of signed Agreements to ensure that the prescribed JFS 01453 is being used and has not been modified. Please feel free to contact Darlene Dalton, Acting Section Chief at 614-752-0656 if you have any questions.

Why Ohio County Agencies Cannot Automatically Reduce Existing Adoption Assistance Payments and What to Do About It

2009-08-26T16:28:00.002-04:00

NOTE: If you receive a notification that your Title IV-E adoption assistance payment is being automatically reduced, please let me know and e-mail me a copy of the notice or mail a copy to Tim O’Hanlon, 1371 Virginia Ave. Columbus, OH 43212.

Neither the Ohio Department of Job and Family Services (ODJFS), nor individual counties may make across the board cuts in existing Title IV-E adoption assistance payments. Here are some reasons why automatic cuts are not legally permissible.

Ohio Regulations at OAC 5101:2-49-12

Ohio rules in conformance with federal law emphasize that adoption assistance agreements must be modified or amended by mutual consent. Paragraph (A) states in pertinent part:
Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. (emphasis added)

Paragraph (B) of OAC 5101:2-49-12 provides in pertinent part:

"At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. (Emphasis added).

Federal Law

The federal Child Welfare Policy Manual is the vehicle though which the federal Administration for Children and Families’, Children’s Bureau interprets federal adoption assistance law. The Children’s Bureau web site makes this very point on the page entitled “Laws and Policies.” The Child Welfare Policy Manual, it states,

"conveys mandatory policies that have their basis in Federal law and/or program regulations. It also provides interpretations of Federal statutes and program regulations initiated by inquiries from State Child Welfare agencies or ACF Regional Offices."

The Child Welfare Policy Manual clarifies and explains Ohio rules. Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.

1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?

Answer: "No. Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence." (Emphasis added).

Federal Court’s Rule that Adoption Assistance Agreements are Contracts

On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.

Finally, in responding to an inquiry about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”

Recommendations

If an adoptive parent with an existing adoption assistance agreement receives a notice from a county or state agency proposing to reduce the child’s adoption assistance payment, they should immediately appeal by contacting the Bureau of State Hearings at ODJFS and requesting a hearing because the agency has proposed to reduce the adoption assistance benefit without grounds. After you have requested a hearing, e-mail the agency a copy of the above arguments informing them why it cannot unilaterally reduce your child’s adoption assistance. Please then inform Tim O’Hanlon at tpohanlon@gmail.com and include your phone number. To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official about the letter you received from the agency. Alternatively, you may fax a request for a hearing to 614728-9574. State your reasons, include the agency notification about a reduction in assistance.

Why Ohio County Agencies Must Continue to Negotiate in Accordance with State and Federal Laws and What to Do if They Don’t

2009-08-26T16:16:00.004-04:00

Effective September 1, 2009, state participation in the federal Title IV-E adoption assistance program will be limited to monthly adoption assistance payments of $240 or less. Prior to the cut, the state provided the non federal portion of payments up to $300 per month. Since April, 2009, the federal financial participation rate has been around 68.34 %, the state’s now down to about 31.66%. The state’s non federal contribution to an adoption assistance payment of $240 per month would be around $76. Counties will be responsible for the non federal portion (31.7%) of adoption assistance payments over $240 per month instead of payments over $300 per month as was the case until the budget cuts.

Negotiating Title IV-E Adoption Assistance Agreements After September 1, 2009

There are two things you should know regarding the negotiation of new adoption assistance agreements after September 1, 2009.

1. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect.

2. Given the rise in the federal share of adoption assistance payments since April 2009, the state budget cuts by themselves do not place as much of a burden on county agencies as it may first appear.

County agencies must negotiate adoption assistance agreements. They may not present adoptive parents with the proposition of “$240 per month, take it or leave it.” The Ohio Administrative Code rule 5101:2-49-05 continues to require that adoption assistance agreements must be negotiated based upon a consideration of the needs of the child and circumstances of the family. The Ohio rule is based directly on federal law at 42 U.S.C. 673 and amplified by Section 8.2D.4 of the federal Child Welfare Policy Manual.

The ODJFS Legal Services staff cited the federal Child Welfare Policy Manual on three separate occasions in an Administrative Appeal Decision, rendered on May 14, 2009. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). In finding against the count and ordering the agency to negotiate with the adoptive parents, the decision quoted at length from Section 8.2D.4 of the federal manual. “Title IV-E adoption assistance,” it read, “is not based upon a standard schedule of itemized needs and countable income.”

The quote continues:

"Instead, 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.
The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. 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."

The Administrative Appeal Decision was signed by the Head of the ODJFS Office of Legal Services as well as the reviewer.

The County Agency’s Financial Burden for Adoption Assistance

With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were when the state provided the non-federal portion of adoption assistance up to payments of $300 per month.

Throughout most the history of the Title IV-E adoption assistance program in Ohio, the federal participation rate was approximately 60% and the non federal participation rate around 40%. Until recently, an adoption assistance payment of $600 per month would have broken down as follows

Previous participation rates

Federal State County

$360 (60%) $120 (40% of $300) $120 (40% over $300)

Under the higher federal participation rates in effect since April, 2009, an adoption assistance payment of $600 would look like the following:

New participation rates (April 2009)

Federal State County

$398 (68.34% of $600) $76 (31.66% of $240) $121 (31.66% of $360)

A negotiated payment of $1,000 per month would break down as follows

Federal State County

$683 (68.34% of $1,000) $76 (31.66% of $240) $241 (31.66% of $760)

In the recent past, at a 40% participation rate, a $1,000 negotiated $1,000 adoption assistance payment would have cost the county agency around $300 per month.

Recommendations

Adoptive parents should insist on negotiating adoption assistance payments based upon the needs of the child and circumstances of the family as described in Section 8.2D.4 of the federal Child Welfare Policy Manual, cited in the Ohio Administrative Appeal decision of May 14, 2009. Contact an advocate for assistance. You can contact me Tim O’Hanlon at tpohanlon@gmail.com
If the agency refuses to negotiate in accordance with state and federal law, ask for a written denial notice, which will contain information on how to request a state administrative hearing.

If the agency takes no action, you can request a hearing on grounds of failure to act with “reasonable promptness.” To ask for a hearing call State Hearings at 614-644-6909, 614-466-6121 or 614-644-6905. Tell the state official that your attempts the agency refuses to engage you in negotiation and/or to issue a formal denial notice. Alternatively, you may fax a request for a hearing to 614728-9574. Include your reasons with your request.

New SAMS Rules: Families with State Adoption Maintenance Subsidies Over $300 Per Month Should Consider Appeal

2009-08-15T11:54:00.004-04:00

Governor Strickland signed an Executive Order-15S: Immediate Amendment of Rules Regarding the Payment of Certain Adoption Expenses on Monday, Aug. 10, 2009, paving the way for emergency rules implementing budget cuts in the state adoption maintenance subsidy (SAMS) program. The reduction in payments to $240 per month will take effect on September 1, 2009.

Families with payments above $300 a month in which the county agency agreed to absorb the additional cost should appeal any attempt by the county to reduce the payment to $240 by requesting a state administrative hearing. The information on how to request a hearing should be included on the IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY that will sent to each SAMS recipient. (See below). Remember that adoptive families have only fifteen days to request a hearing. The normal period is ninety days.

The announced reductions in state funding do not affect county funding and parents can legitimately argue that the county agency entered into the agreement based upon the needs of the child and circumstances of the family. Executive Order 15-S and the newly enacted SAMS rules refer to the availability of state funds, not county funds. Accordingly, parents with state subsidies over $300 per month can argue that that justification for reductions in state funding has no bearing on county financial participation.

Suppose, for example, that a child a state adoption maintenance subsidy of $600 per month. Until September 1, the state’s financial contribution is $300 and the county’s share is $300. While the state might succeed in reducing its share by $60 per month based upon the new rules, the county has no justification for a similar cut and the adoptive parents have a valid argument that the subsidy should not drop below $540 per month.

New Rules and Forms

The following presents the two new emergency SAMS rules, along with a copy of the notification each SAMS recipient will receive.

5101:2-44-06 Eligibility of adoptive family and adoptive child for the state
adoption maintenance subsidy program.

(A) In addition to the requirements in paragraph (B) of this rule, all of the following
eligibility requirements for the state adoption maintenance subsidy program shall
be met:

(1) The child is in the permanent custody of a public children services agency
(PCSA) or a private child placing agency (PCPA) and is legally available for
adoption.

(2) The child is a special needs child who, prior to the adoptive placement, has at
least one of the following needs or circumstances that may be a barrier to
placement or adoption or a barrier to a child being sustained in a substitute
care placement or adoptive home without financial assistance because the
child is at least one of the following:

(a) Is in a sibling group which should be placed together.

(b) Is a member of a minority or ethnic group.

(c) Is six years of age or older.

(d) Has remained in the permanent custody of a PCSA or PCPA for more
than one year.

(e) Has a medical condition, physical impairment, mental retardation or
developmental disability.

(f) Has an emotional disturbance or behavioral problem.

(g) Has a social or medical history or the background of the child's biological
family has a social or medical history which may place the child at risk
of acquiring a medical condition, a physical, mental or developmental
disability or an emotional disorder.

(h) Has been in the home of his or her prospective adoptive parents as a foster
child for at least one year and would experience severe separation and
loss if placed in another setting due to his or her significant emotional
ties with these foster parents as determined and documented by a
qualified mental health professional.

(i) Has experienced previous adoption disruption or multiple placements.

(3) The child is either:

(a) Under the age of eighteen.

(b) Between eighteen and twenty-one years of age and is mentally or
physically handicapped as diagnosed by a qualified professional.

(i) For the purpose of this rule, a qualified professional is defined as an
audiologist, licensed independent social worker, licensed
professional clinical counselor, medical doctor, orthopedist,
psychiatrist, psychologist, or speech/language pathologist. The
qualified professional shall only diagnose handicaps within the
professional's area of expertise.

(ii) A clear written statement of the child's mental or physical handicap
shall be supported by an assessment or evaluation from the
qualified professional including an opinion as to the origin of the
problem, past history, prognosis, and recommendations related to
future treatment needs.

(4) A PCSA or PCPA has approved the adoptive parent for adoptive placement
pursuant to Chapter 5101:2-48 of the Administrative Code. If a PCPA
approved the adoptive placement, the PCPA shall provide the PCSA with the
JFS 01673 "Assessment for Child Placement (Homestudy)" (rev. 8/2005),
JFS 01654 "Adoptive Placement Agreement" (rev. 10/2001) and JFS 01616
"Social and Medical History" (rev. 6/2006).

(5) The adoptive parent has applied and has been determined ineligible for the Title
IV-E adoption assistance program, in accordance with rule 5101:2-49-02 of
the Administrative Code. Eligibility for reimbursement of nonrecurring
adoption expenses under Title IV-E, 42 U.S.C. 673, June 17, 1980, pursuant
to rule 5101:2-49-21 of the Administrative Code, does not constitute
eligibility for Title IV-E adoption assistance.

(6) The adoptive family has the capability of providing the permanent family
relationships needed by the child.

(7) The needs of the child are beyond the economic resources of the adoptive
family.

(8) The acceptance of the child as a member of the adoptive parent's family would
not be in the child's best interest without state adoption subsidy payments.

(9) The adoptive family has completed the JFS 01613 "Application for State
Adoption Subsidy" (rev. 7/2004) and the PCSA has approved or denied the
JFS 01613 prior to the adoption finalization.

(B) An adoptive family is eligible for payments under the state adoption maintenance
subsidy if all the requirements in paragraph (A) of this rule are met and:

(1) The adoptive parent's annual gross income does not exceed one hundred and
twenty per cent of the median income of a family of the same size, including
the adoptive child, as most recently determined for this state pursuant to
division (B) of section 5153.163 of the Revised Code.

(2) The adoptive parent verifies the family's annual gross income by providing
verification, as applicable, from the most recent U.S. department of internal
revenue service (IRS) income tax form, proof of receipt of benefits from the
social security administration, proof of receipt of workers compensation, or
other income verification from other providers of pension benefits.

(C) The state adoption subsidy payment amount shall be agreed upon between the PCSA
and the adoptive parent and shall be based upon the needs of the adoptive child, the
circumstances of the adoptive family, and in accordance with the PCSA's adoption
policy.

(D) The state adoption maintenance subsidy program shall provide a maximum payment of two hundred forty dollars per month per child for an approved state adoption maintenance subsidy.

Effective: 08/13/2009 Emergency

5101:2-44-08 Redetermination and amendment of a state adoption
maintenance subsidy.

(A) When the Ohio department of job and family services (ODJFS) determines that state
funds are not available to maintain the state adoption maintenance subsidy program
at the current maximum monthly funding level and notifies the public children
services agency (PCSA) of the unavailability of state funds, the PCSA shall take
the following actions:

(1) Notify any adoptive parent receiving a monthly subsidy that is greater than two
hundred forty dollars per child. This PCSA notification of families shall
occur:

(a) No later than fifteen days before the action commences.

(b) By use of a notice specifically developed and designated by ODJFS.

(2) Enter into an amended agreement with the adoptive parent of the JFS 01615
"Approval for State Adoption Subsidy" (rev. 7/2004) within thirty days of the
effective date of this rule. The amended JFS 01615 shall provide for not
monthly payment in excess of the amount ODJFS has determined as available
for the program. Until such time as an amended agreement is executed, the
current JFS 01615 is terminated for any monthly amount in excess of two
hundred forty dollars per child.

(A)(B) Except as provided in paragraph (C) of this rule, the (PCSA) shall complete a redetermination of each state adoption maintenance subsidy one year from the initial effective date of the JFS 01615 "Approval for State Adoption Subsidy" (rev. 7/2004) or most recent
redetermination and amendment date and annually thereafter.

(C) Any recalculation and amendment to the JFS 01615 to address availability of state funds as provided in paragraph (A) of this rule does not change the date of the redetermination of the subsidy.

(B)(D) Except as provided in paragraph (A) of this rule, to initiate the redetermination
process, the PCSA shall provide written notice to the adoptive parent at least sixty
calendar days prior to the anniversary date of the effective JFS 01615 or most
recent redetermination or amendment.

(C)(E) Except as provided in paragraph (A) of this rule, the PCSA shall redetermine
the state adoption subsidy more often than annually upon written request of the
adoptive parent or if the PCSA is aware of substantial changes in the adoptive
parent's financial situation or the adoptive child's special needs. A redetermination
or amendment shall occur when:

(1) The adoptive parent's or adoptive child's eligibility status has changed.

(2) The addition or deletion of a state adoption maintenance subsidy is necessary.

(D)(F) Except as provided in paragraph (A) of this rule, the following are necessary
to redetermine or amend a JFS 01615:

(1) The adoptive parent shall provide written verification of continued financial
eligibility.

(2) The PCSA shall determine, from verification submitted by the adoptive parent,
if the adoptive child and the adoptive parent remain eligible pursuant to rule
5101:2-44-06 of the Administrative Code.

(E)(G) Except as provided in paragraph (A) of this rule, the PCSA shall complete the
redetermination and provide written notification to the adoptive parent of the
redetermination outcome at least fifteen days prior to the annual anniversary date of
the JFS 01615 or most recent redetermination, or within thirty days of a request for
an amendment.

(F)(H) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in no change or a change in the amount of state adoption
subsidy, the PCSA shall use the JFS 01615 to inform the adoptive parent of the
results and the effective date of the redetermined subsidy.

(G)(I) Except as provided in paragraph (A) of this rule, if the redetermination or
amendment results in a decrease, suspension or termination of the state adoption
subsidy, the PCSA shall use the JFS 04065 "Prior Notice of Right to a State
Hearing" (rev. 5/2001) to inform the adoptive parent of the reason for the action, its
effective date and the right to a state hearing pursuant to section 5101.35 of the
Revised Code and division 5101:6 of the Administrative Code.

(H)(J) If the adoptive parent fails to comply with the requirements of a redetermination as
described in this rule, the PCSA shall suspend the state adoption subsidy pursuant
to rule 5101:2-44-10 of the Administrative Code or terminate the state adoption
subsidy pursuant to rule 5101:2-44-11 of the Administrative Code.

(I)(K) An adoptive parent receiving a state adoption subsidy shall report any significant
change in the adoptive family's financial situation or the adoptive child's special
needs within thirty days of the change to the PCSA that approved the state adoption
subsidy.

Effective: 08/13/2009

IMPORTANT NOTICE ABOUT YOUR STATE ADOPTION MAINTENANCE SUBSIDY

Name:
Case Number:
Address:

Public Children Services Agency:
City:

State, Zip Code:
Mailing Date:

Action We Are Taking In Your Case
Beginning September 1, 2009, your monthly subsidy payment will be reduced from $_______to $_________.

Reason For This Change

The funding provided for the Ohio Department of Job & Family Services in the recent state budget will allow the department to reimburse us only a maximum of $240 per month per case, rather than $300. Because we do not have sufficient local funding to make up the difference, we are forced to reduce the amount we pay you by terminating any amounts in excess of $240.

Applicable Law

This action is based on the state budget bill (Section 309.10, Amended Substitute House Bill Number 1, 128th General Assembly) and Rules 5101:2-44-03, 2-44-06, 2-44-08 of the Ohio Administrative Code.

Questions?
If you do not understand this notice or have questions about it, you may call: __________________________
Name Telephone

Your Right To A State Hearing

If you believe that this change of law has been incorrectly applied to your case, you have the right to a state hearing. A state hearing lets you or your representative (lawyer, friend, relative) give your reasons for your belief. We will also attend the hearing to present our reasons for taking this action. A hearing officer from the Ohio Department of Job & Family Services will decide whether you or we are right.

If you win the hearing the action may not be taken, or if it already has been taken your subsidy could be restored. If you lose your hearing, you may have to pay back any subsidy amount that you were not eligible for while the hearing was pending.

If you want a state hearing, your hearing request must be received by ________________, 2009.
If you want your current subsidy to continue until the hearing, your hearing request must be received by _________________, 2009
If you do not want a state hearing, then do not return this form.

If you need legal assistance, you can contact your local bar association. If you want information on free legal services, you can contact your local legal aid office or call the Ohio State Legal Services Association toll free at 1-800-589-5888. You can also contact the Ohio Legal Rights Service toll free at 1-800-282-9181, whose goal is “to protect and advocate the rights of mentally ill persons, mentally retarded persons, developmentally disabled persons, and other disabled persons.”

I want a hearing because I think the change of law has been incorrectly applied to my case:

[ ]

Your signature Date Telephone E-mail

I also appoint this person as my authorized representative to help me with my state hearing:
[ ]

Name Address Telephone E-mail

If you want a state hearing, you must mail this form to the following:
Ohio Department of Job & Family Services
Bureau of State Hearing
P.O. Box 182825
Columbus, OH 43218-2825

Alternatively, you can make an oral hearing request with us.

Another Change to the Title IV-E Adoption Assistance Program

2009-08-13T14:25:00.001-04:00

It appears that there will be no attempt to make automatic changes in existing Title IV-E adoption assistance payments, which signifies the state’s acceptance that adoption assistance agreements are individual contracts. Please let us know if you receive a notification that your adoption assistance payment is being reduced without your consent. Then, immediately contact the Ohio Department of Job and Family Services’ (ODJFS) Bureau of State Hearings and ask for a hearing.

After further consideration and discussions with the Public Children Services Association of Ohio (PCSAO), Sandra Holt, Deputy Director for Family and Children Services at the Ohio Department of Job and Family Services (ODJFS) announced new changes in Ohio’s Title IV-E adoption assistance program in a letter to county children services directors dated August 7, 2009. See the previous blog for a discussion of programs other that Title IV-E adoption assistance. The most recent communication corrects some changes announced in the Deputy Director’s letter of July 31. 2009.

No Automatic Changes in Current Benefits

The Deputy Director’s letter cites Ohio Administrative Code rule 5101:2-49-12 which states

“. . . . the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA.”

There is no mention of unilateral or automatic reductions in existing agreements, which signals the acceptance of adoption assistance agreements a contracts.

State Participation Rates for Agreements Negotiated After September 1, 2009

The August 7, 2009 letter announced that the state will provide the non federal portion of adoption assistance benefits up to a maximum payment of $240 per month. The current federal participation rate is 68.34% and the non-federal matching rate is 33.66%. This means that for every monthly adoption assistance payment of $240, the federal share will be about $164 and the state’s non-federal share will be about $76.

Counties will continue to be responsible the non federal portion of any negotiated adoption assistance payment over $240 per month. With a non-federal participation rate of 33.66%, counties will only be responsible for around $20 per month more than they were with the state provided the non-federal portion of adoption assistance up to payments of $300 per month.

Federal and state regulations governing negotiations based upon the needs of the child and circumstances of the family have not changed. Adoptive parents should be as assertive as before in negotiating fair and adequate adoption assistance agreements on behalf of their special needs children.

State Adoption Maintenance Subsidy Changed Again; The Wheels Keep on Turning

2009-08-13T13:51:00.002-04:00

After further consideration and discussions with the Public Children Services Association of Ohio (PCSAO), Sandra Holt, Deputy Director for Family and Children Services at the Ohio Department of Job and Family Services (ODJFS) announced new changes in Ohio’s state adoption maintenance subsidy program in a letter to county agency directors, dated August 7, 2009. The most recent communication some corrects some changes announced in the Deputy Director’s letter of July 31. 2009. No changes were announced in the PASSS program and the program for reimbursement of non-recurring adoption expenses is still scheduled to be reduced from a maximum of $2,000 to a maximum of $1,000 beginning with applications signed after September 1, 2009. Changes in the Title IV-E adoption assistance program will be discussed in the next blog.

The State Adoption Maintenance Subsidy (SAMS)

The state adoption maintenance subsidy, headed for termination on September 1, 2009 will now continue until 2018. Not coincidentally, that is the year in which the ADC-relatedness requirement for federal Title IV-E adoption assistance will be completely phased out of existence. The phase out begins on October 1, 2009, for children age 16 and over and continues down the age scale two years at a time.

The state’s contribution to the state subsidy program will be $240 per month, which for all practical purposes means that the maximum payment rate will be $240 per month. Unlike the federal Title IV-E adoption assistance program, counties receive no outside funds if they agree to payment over the state participation rate. Any payment over $240 would come entirely from county coffers.

The letter also announced the intention of lowering existing as well as new state adoption subsidy payments to $240 per month. The Deputy Director cited the language on the JFS 01615 Approval for a State Subsidy form as the justification for lowering existing state subsidy payments, which states “the approval and continuation of the state adoption maintenance subsidy is contingent upon the availability of the funds.” The letter continues:

“The subsidy may be suspended or terminated in the event of a judicial, executive or legislative action suspending or terminating the authority of the agency to continue state adoption maintenance subsidy.” An Executive Order is expected to authorize emergency rules that lower the state adoption payment rates for both existing and future non IV-E subsidies.

Each adoptive family with a state adoption maintenance subsidy will receive written notification . Parents will have the opportunity to appeal the cut to their subsidy if they request a hearing within 15 days after receiving the notice. A timely request for a hearing would freeze the payment at its current rate, but the adoptive family would be subject to repaying the money if it lost the hearing.

Before deciding to appeal, parents should review the language on their subsidy agreement. Those children that were receiving more than $300 per month should also consider an appeal.

Adoption Assistance: The Need for a Statewide Communication Network

2009-08-06T14:19:00.004-04:00

The Need for a Communication Network

In the wake of budget cuts to adoption assistance programs, we must establish an effective statewide communication network. County agencies have been sending adoptive parents letters requesting that they consider a voluntary reduction in their Title IV-E adoption assistance benefits. So far, the position that existing adoption assistance benefits cannot be automatically reduced unless the parents agree appears to be accepted. The federal Adminstration for Children and Families and federal courts have recognized adoption assistance agreements as contracts that cannot be automatically altered. Please contact me at topohanlon@gmail.com if you receive a notice informing you that the county plans to reduce your adoption assistance benefits whether your consent or not. In such cases, contact the ODJFS Bureau of State Hearings imediately and request a hearing.

If you receive a letter asking you to voluntarily accept a cut in adoption assistance, the choice is up to you. If you disagree, I would suggest an e-mail or letter informing the county that the adoption assistance agreement is a contract that cannot be altered except by mutual consent. You can add that after considering your child's needs and family circumstances it would not be in their interest to reduce the level of support. Accordingly, you are rejecting the request to amend the adoption assistance agreement and reduce the adoption assistance benefit.

Negotiations of future adoption assistance agreements after September 1, 2009.

Adoption assistance agreements must still be determined by negotiation based on a consideration of the needs of the child and circumstances of the family.

In an Administrative Appeal Decision, rendered on May 14, 2009, the reviewer, a member of the ODJFS’s legal services staff, cited the federal Child Welfare Policy Manual on three separate occasions. (See Docket Number: AA-3952, Appeal No(s) 1477168 IVE). The most striking quote was taken from Section 8.2D.4 of the Child Welfare Policy Manual with addresses the negotiation of adoption assistance agreements. The first sentence reads as follows: “Title IV-E adoption assistance is not based upon a standard schedule of itemized needs and countable income.”

The quotation in the recent Administrative Appeal decision continues:

"Instead, 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.
The circumstances of the adopting parents must be considered together with the needs of the child when negotiating the adoption assistance agreement.

Consideration of the circumstances of the adopting parents has been interpreted by the Department to pertain to the adopting family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as their overall capacity to meet the immediate and future needs (including educational) of the child. This means considering the overall ability of the family to incorporate an individual child into their household. 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."

The Administrative Appeal Decision was signed by the Head of the ODJFS Office of Legal Services as well as the reviewer. This decision is significant because it recognizes the authority of the federal Child Welfare Policy Manual to clarify the meaning of Ohio rules.

Please contact me if the agency refuses to negotiate in accordance with the criteria quoted above. Remember that the federal financial participation rate is currently 68.34% of each adoption assistance payment. The county’s non federal share is now 31.66%. Traditionally, the federal participation rate was around 60% and the non-federal share was about 40%. After September 1, 2009, the county agencies will have to provide the non federal share of each dollar in IV-E adoption assistance above $225 per month. On the other hand, the county’s share of the cost is significantly lower than it used to be prior to April 2009.

Ohio County Agencies Planning Automatic or Across the Board Cuts in Adoption Assistance in September 2009?

2009-08-04T10:30:00.003-04:00

Note for parents: At this point, we don't know if county agencies are going to attempt to reduce adoption assistance payments. We believe that the law is clearly on your side. Share this blog and the preceding blog with other parents, parents support groups and state legislators. If you receive a communication announcing a reduction in your Title IV-E adoption assistance payments, contact the Bureau of State Hearings immediately and request a hearing; please also contact me and other parents.

An adoptive parent with an existing adoption assistance agreement phoned and informed me that Montgomery County was planning to reduce her Title IV-E adoption assistance payments in September of 2009. In an earlier paper, I argued that neither the state, nor county could make automatic cuts in adoption assistance agreements unless there were across the board cuts in foster care payments. Even then, the only adoption assistance payments that might be affected were those that exceeded the appropriate foster home rate for the child. In effect this means that an adoption assistance payment cannot be cut beyond the amount it exceeds the foster care payment.

Three points must be considered before the state or any individual county attempts any rash actions to make across the board or automatic cuts in adoption assistance.

1. The federal Administration for Children and Families and federal courts in recent Missouri and Oregon have determined that adoption assistance agreements are individual contracts.

2. Adoptive parents have full due process rights under federal regulations at 45 CFR 205.10 that preclude any automatic reduction of benefits. A request for a hearing freezes any attempted reduction in place until due process takes its course. Any attempt to make automatic or across the board cuts in adoption assistance will be greeted with hundreds, perhaps thousands of state administrative hearings.

3. Federal policy stipulates that budget problems are not sufficient grounds for automatic reductions of adoption assistance payments.

4. Federal and state laws both stipulate that existing agreements cannot be modified with the consent of the parents.

Section 8.2A of the federal Child Welfare Policy Manual, for example asks and answers the following question.

1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for Federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?

Answer: No. Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence. (Emphasis added).

OAC 5101:2-49-12 (Ohio Rule)

A) Prior to the expiration date of the JFS 01453 "Adoption Assistance Agreement" (rev. 10/2006), the adoptive parent(s) and the public children services agency (PCSA) may by mutual agreement modify/amend the JFS 01453. The modified/amended agreement shall specify the duration of the agreement and shall meet all other requirements of rule 5101:2-49-03 of the Administrative Code.

(B) At any time during the duration of the JFS 01453, the adoptive parent(s) and the PCSA may agree to modify/amend the payment amount or provision for services. Any modification/amendment of the Title IV-E adoption assistance (AA) payment amount or provision of services must be made by mutual agreement between the adoptive parent(s) and the PCSA based on the needs of the child and the circumstances of the adoptive family. When the parties concur upon a change in the AA payment amount, a modified/amended agreement shall be completed and signed by both the adoptive parent(s) and the PCSA. A copy shall be given to the adoptive parent(s) and a copy shall be retained by the PCSA. The modified/amended agreement shall meet all requirements of rule 5101:2-49-10 of the Administrative Code.

(C) In cases where the PCSA and the adoptive parent(s) cannot agree on the amount of AA that should be provided, they may complete a JFS 01453 for a mutually acceptable level of AA payment while negotiations continue or the adoptive parent(s) request a state hearing. (Emphasis added).

Attempts to make across the board reductions in adoption assistance would not only generate hundreds of hearings, but the provisions in federal and state law assure that the appellants would prevail. Any attempt by the state to deny due process is a violation of the IV-E State Plan. A class action law suit would soon follow. Does the state and/or Ohio counties want to completely destroy the little good will that is left in the special needs adoption program?

Cuts in Ohio’s Support for Federal Adoption Assistance; Can the State or County Agencies Make Automatic Cuts in Existing Adoption Assistance Payments?

2009-08-04T10:25:00.004-04:00

Title IV-E Adoption Assistance

State participation in the federal Title IV-E adoption assistance program will be limited to monthly adoption assistance payments of $240 or less. Prior to the cut, the state provided the non federal portion of payments up to $300 per month. Since last April, the federal financial participation rate has been around 68.34 %, the state’s now down to about 31.66%. The state’s non federal contribution to an adoption assistance payment of $240 per month would be around $76.

The will be effective on September 1, 2009. The same federal and state requirements to negotiate adoption assistance agreements based on an equal consideration of the child’s needs and family circumstances are still in effect. Counties will be responsible for the non federal portion (31.7%) of adoption assistance payments over $240 per month instead of payments over $300 per month as was the case until the budget cuts.

Federal and state laws governing negotiation of IV-E adoption assistance agreements remain the same and adoptive parents should continue to insist that the current procedures and criteria continue to be followed. Adoption assistance agreements must be negotiated and the negotiations must take into consideration the ordinary and special needs of the child and the overall circumstances of the adoptive family. Both factors must be given equal consideration. Parents should also continue to exercise their appeal rights through the state administrative hearing system when negotiations fail to be productive.

Existing Adoption Assistance Agreements

According to the federal Child Welfare Policy Manual, the Ohio Department of Job and Family Services (ODJFS) cannot institute automatic or across the board cuts to existing adoption assistance payments.

Section 8.2A of the manual asks and answers the following question:

1. Question: Is it permissible for a State to include a statement in the title IV-E adoption assistance agreement to the effect that "The Department’s obligation to provide for Federally funded adoption assistance payments and/or services is subject to the appropriation of State funds"?

Answer: No. Although we understand that the State may experience difficulties in its ability to pay subsidies due to the State budget, such difficulties do not relieve or alter the State’s obligation under title IV-E to act in accordance with executed adoption assistance agreements. Accordingly, any statement that undermines the State’s obligation to honor the terms of the title IV-E adoption assistance agreement is not consistent with Federal requirements in sections 473(a)(1)(B)(ii) and 473(a)(3) of the Social Security Act. Once an agreement is signed, the State must obtain the concurrence of the adoptive parent if it wishes to make any changes in the payment amount with one exception. That exception is when there is an across-the-board reduction or increase in the foster care maintenance payment rate. In that circumstance, the State may adjust the adoption assistance payment without the adoptive parent's concurrence.

There are maximum statewide foster care rates in Ohio, but regular rates top out at $170 per day (around $5,100). The maximum difficulty of care rates add an additional $100 per day for specialized category and $200 per day for the exceptional care category. The chances of the state reducing maximum foster care rates anywhere close to existing adoption assistance payment levels are virtually nil. As I will argue, the only those families whose adoption assistance payments exceeded state foster care maximums could have their adoption assistance automatically reduced.

Why do federal officials cite across the board foster care reductions as the only acceptable reason for across the board cuts in adoption assistance?

Under current law, the federal share of funding for adoption assistance is available up to the child’s foster home level of support, that is the rate of payment the child would receive if they were placed in a foster home suitable to their level of care instead of an adoptive home. The only logical reason why an across the board cut in foster care rates would justify automatic or across the board reductions in adoption assistance is that existing adoption assistance payments would be higher than the newly reduced foster care rates. That portion of the adoption assistance payment that exceeded the foster care rate would not eligible for federal financial participation.

Suppose, for example, that standard therapeutic or exceptional needs foster care rate were $1,600 a month. The state reduces the therapeutic exceptional needs foster care to $1,500 per month. Adoption assistance agreements calling for adoption assistance payments of $1,600 to children with a therapeutic exceptional level of care would only be eligible for federal financial participation up to a maximum of $1,500 per month. In such situations, federal policy allows a state to make automatic or across the board cuts to adoption assistance payments.

I would argue, however, that the state cannot make any automatic cuts or across the board cuts adoption assistance payments that do not exceed the appropriate foster care rate for the child. In our example, the state could not reduce the adoption assistance of children with agreements calling for payments of $1,500 per month or less.

County agencies can always propose a reduction in adoption assistance, but must do so on an individual case by case basis and provide full notice and appeal rights. The burden of proof would rest with the county agency to establish why the needs of the child and family circumstances warranted a decrease. As we have seen, budget problems are not a valid reason.

Can Counties make automatic or across the board reductions in existing adoption assistance payments by making across the board cuts in foster care?

The answer to this question is not entirely clear, but individual counties would run into a number of difficulties in attempting to make automatic or across the board cuts in existing adoption assistance payments.

Under current law, the federal share of funding for adoption assistance is available up to the child’s foster home level of support, that is the rate of payment the child would receive if they were placed in a foster home suitable to their level of care instead of an adoptive home. Suppose for example, a child in a therapeutic foster home received or would receive $1,600 in monthly support. Federal financial participation would be available for an adoption assistance payment up to $1,600 if the agency and parties negotiated an agreement for that amount. At approximately 68.3%, the federal share of a $1,600 per month adoption assistance payment would be around $1,093.

Now, suppose across the board cuts in foster care lower the therapeutic foster care rate from $1,600 to $1,500 per month. Federal financial participation would only be available for adoption assistance payments up to $1,500 per month. It is for this reason that the federal Administration for Children and Families permit states to make across the board cuts in adoption assistance only when there are across the board cuts in foster care. Such cuts might affect federal financial participation rates.

It is not entirely clear, whether a political subdivision such as an Ohio county could legally make across the board cuts in adoption assistance by making across the board cuts in foster care. For the sake of argument, however, let us suppose that such a policy is permissible under the law.

Across the board cuts include must cuts in the specialized rates paid to a number of private service providers which provide foster homes under contract with county agencies. Recent trends have witnessed a growth in contracted foster care services, especially for child with high levels of care, as counties have struggled to secure an adequate number of qualified foster parents. If a child in a therapeutic foster home operated by a private provider qualifies for federal Title IV-E foster care maintenance and the foster parents receive $2,000 a month in support, the Ohio county benefits from 60% federal financial participation or about $1,200 in direct payments to that home. If the child were to be adopted by their therapeutic foster parents, federal participation in IV-E adoption assistance would be available for payments of up to $2,000 per month if the parents and agency negotiated an agreement for that amount.

Issue: Adoptive Parents often settle for adoption assistance payments that are lower than the child’s foster care rate, especially in cases involving specialized levels of care.

To carry the above example forward, suppose the county lowered its therapeutic foster care rate from $1,600 to $1,500. It is quite likely that few families that have adopted children through the county with a therapeutic level of care have adoption assistance agreements calling for monthly payments of $1,600. I doubt whether very many would have agreements in place calling for adoption assistance payments of $1,500. What about families whose adoption assistance payments remain at or below the foster care rates even after the county makes across the board cuts?

Issue: May a county cut adoption assistance payments if they remain at or below the foster care rates appropriate for the child?

Continuing our example, suppose after cutting the therapeutic foster care rate from $1,600 to $1,500, the highest adoption assistance rate in the county is $1,400. I would argue that the county cannot make any automatic cuts in those adoption assistance payments as long as they do not exceed the appropriate foster care rate for that child.

County agencies can always propose a reduction in adoption assistance, but must do so on an individual case by case basis and provide full notice and appeal rights. The burden of proof would rest with the county agency to establish why the needs of the child and family circumstances warranted a decrease. As we have seen, budget problems are not a valid reason.

My position rests on the fact that adoption assistance agreements are individual contracts, a position supported by Region IV of the federal Administration for Children and Families and two recent federal court decisions.

On May 1, 2006, a federal judge struck down the State of Missouri’s attempt to reduce adoption assistance, by retroactively making all existing adoption assistance agreements expire on their one year anniversary. In E.C. v. Sherman, the court determined that by abrogating existing adoption assistance agreements that commonly ran until the child’s 18th birthday, the state violated the families’ contractual rights, which in turn violated Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

A 2008 settlement of the class action lawsuit in ASW, et al. v. State of Oregon compensated 6,688 adoptive families reversed the state’s 7.5% across the board cuts in adoption assistance as a 2003 budget measure. The settlement was reached after the Ninth Circuit Court of Appeals ruled that the families had a federal right to individualized adoption assistance agreements as well as the right to appeal through the administrative hearing process. The Oregon Supreme Court refused to hear the state’s appeal of that decision.

Finally, in responding to an inquiries about across the board or automatic cuts in adoption assistance from the State of Florida, Region IV of the federal Administration for Children and Families affirmed the contractual status of the adoption assistance agreement. The adoption assistance agreement, signed by all parties,” wrote the federal official, “is a legally-binding document.”

Summary

Based on federal policy issuances, court decisions and federal law itself, I feel confident in stating that county agencies cannot make automatic cuts in existing Title IV-E adoption assistance payments, unless there are across the board foster care cuts and then only in those cases where the adoption assistance payment exceeds the new foster care rate. In all other cases, where the adoption assistance payment remains at or below the existing foster care rate, the county must first propose to reduce the individual family’s payment, then show at hearing why such a reduction is justified. Under state regulations, the reduction could not take place until the appeal process had run its course. Counties would face dozens, perhaps hundreds of hearings and their chances of prevailing would not be good.

One more point deserves consideration. In a time, when the search for qualified foster parents has county agencies turning to private service providers in increasing numbers, how much can counties lower foster care rates without driving foster parents away? In tough economic times, the number of children entering foster care usually increases.

Latest News on Budget Cuts Affecting Adoption Assistance Programs in Ohio

2009-08-01T15:11:00.003-04:00

The following memorandums was issued by Deputy Director Sandra Holt on July 31, 2009. The memo was shared with various advocacy groups.

July 31, 2009

TO: Directors, Public Children Services Agencies

FROM: Sandra T. Holt, Deputy Director,

July 31, 2009

TO: Directors, Public Children Services Agencies

FROM: Sandra T. Holt , Deputy Director Office of Families and Children

SUBJECT: Budget Impact on Child Welfare Programs

I know many of you are eager for more information about the impacts the state fiscal year 2010-2011 budget will have on our child welfare programs, so I am writing to provide an update. As you know, the downturn in the national economy and declining state revenues will require us all to make some very difficult adjustments.

Here is how the budget will impact the following programs:

• Post Adoption Special Services Subsidy (PASSS) – Although the final budget reduced overall funding for adoption services, funding for the PASSS program has been secured, at the SFY 2009 level.

• Title IV-E Adoption Assistance (AA) – State AA reimbursement will need to be reduced. The state will provide the non-federal match for AA payments at or below $225 per month per child, beginning with the September subsidy payments. County agencies will be responsible for providing the non-federal match amount above $225.

• State Adoption Maintenance Subsidy (SAMS) - There will be no reduction in the state share for those eligible for SAMS prior to September 1, 2009. However, no new applications for SAMS will be accepted or approved on or after September 1.

• Non-Recurring Adoption Expenses – As you know, Ohio’s AA program provides a state-matched federal reimbursement to adoptive families for expenses such as adoption fees, court costs, attorney fees and other expenses directly related to the legal adoption of children with special needs. We intend to reduce this reimbursement to a maximum of $1,000 per child.

Ohio to Cut State Financial Participation in Title IV-E Adoption Assistance?

2009-07-06T11:50:00.003-04:00

The best guess, and it is still uncertain, is that Ohio' s budget legislation is going to reduce its matching share of Title IV-E adoption assistance to overall monthly payments of $215 PER MONTH. At around 40%, that means the state's contribution will amount to about $86 PER MONTH. Yes, that's right, if the the cuts go through as proposed.

Foster care rates probably will not go down because Ohio County welfare agencies have a legal obligation to provide foster care. Counties are already contracting larger portions of their foster care to private service providers because of the difficulty of securing qualified caregivers.

The problem of course is that with 70 or or percent of special needs children being adopted by their foster parents, the struggle over negotiating an adequate amount of adoption assistance will become more intense. I urge adopting parents to become as well informed as possible and to negotiate as as vigorously as they can. I will assist Ohio families as well as those in other states, upon request.

Families with existing agreements cannot be automatically cut. The existing agreement is essentially a contract. Please let me know what is going on in your state.

Agency Threats to Remove a Child as a Means of Undermining Adoption Assistance Negotiations

2009-06-22T15:45:00.004-04:00

State and county agencies frequently threaten to remove the child from a prospective adoptive family if said family becomes too assertive about negotiating adoption assistance benefits. In light of the long standing trend for special needs children to be adopted by their foster caregivers, many of the boys and girls who are objects of these threats have been in foster homes for several years and have forged healthy emotional bonds to the people want to provide a permanent home for them. I have encountered dozens of these disturbing situations over the years, and in only a handful of cases has the safety and suitability of the home maintained by the prospective adoptive parents been in question.

For agencies pledged to the promote the best interests of the children in their care, the threat to remove children from the only stable homes they have ever known is shockingly immoral, particularly when the primary motive lies in frightening prospective adoptive parents into settling for an inadequate amount of adoption assistance. The deliberate attempt to undermine the negotiation of adoption assistance through intimidation is probably against the law as well.

Federal law at 42 U.S.C 673 provides that adoption assistance payments be determined through negotiated written agreements between the state or county agency and the adoptive parents, based upon a thorough consideration of the child’s needs and overall family circumstances. The Code of Federal Regulations at 45 CFR 1356.40(f) stipulates that states “must actively seek ways to promote the adoption assistance program.” The Code of Federal Regulations at 45 CFR 205.10 not only guarantees adoptive parents the right to apply for Title IV-E adoption assistance, but also to appeal adverse decisions regarding the amount of assistance. Efforts to thwart these due process rights run counter to federal adoption assistance law and in principle place a state's federal funding in jeopardy.

Surprisingly, there appears to be no consensus among attorneys regarding the most effective course of action to take when a prospective adoptive parent is threatened with the removal of their child during a disagreement over the amount of adoption assistance. In the absence of clear laws or regulations forbidding arbitrary removal, a petition to the appropriate court for a temporary restraining order or injunction seems to be the most logical course of action. Some parents have attempted to enlist the support of the child's Guardian Ad Litem to intervene with the local court.

The frequency with which adoptive parents are terrorized with threats of losing their child during the course of adoption assistance regulations calls for legislation to prevent vulnerable children that have already lost at least one family from unnecessarily losing another. At minimum such legislation, should forbid agencies from removing children in pre-adoptive homes for reasons other than abuse, neglect or other causes associated with protective services regulations. In addition, any proposed action to remove a child from a pre-adoptive home should automatically trigger a hearing before a court of competent jurisdiction. At the hearing, the existence of a strong and healthy emotional attachment with the prospective adoptive parents should be a prime consideration for the court. Finally, the burden should be on the agency to show that the family that it studied and approved as suitable for the the child has become sufficiently detrimental to the his or her well being as to warrant a traumatic placement in a new household.

Congress Amends Title IV-E Adoption Assistance Law and Adds Provision for Subsidized Guardianships

2008-12-17T22:11:00.002-05:00

President George W. Bush signed new Title IV-E adoption assistance legislation into law on October 7, 2008. The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110-351), phases out ADC-relatedness as an eligibility requirement and provides federal financial participation for certain relatives serving as guardians for special needs children. The House of Representatives passed the legislation, identified as HR 6893, on September 17 and the Senate followed suit five days later on September 22.

A clear and comprehensive summary of the law, entitled “Federal Law Overhauls U.S. Child Welfare Financing,” appears on the web site of North American Council on Adoptable Children (NACAC). That being the case, our previous blog focused in changes in the Title IV-E adoption assistance program. We will now address the provisions for kinship care assistance.

Relative Guardianship Assistance

The new law provides federal funding for relative guardianship assistance on the same terms as Title IV-E adoption assistance.

1. Federal funding per child is available up to the level of support the child would have received were he or she in a foster home.

2. The amount of assistance must be determined by written agreement.

3. The agreement is to be negotiated based upon the need of the child and circumstances of the relative guardian and needs of the child.

4. The agreement must list additional services that the child will be eligible to receive along with the procedures for accessing them.

5. The agreement may be modified periodically in the same manner as an adoption assistance agreement.

6. The agreement will be in effect, if a child moves to another state.

7. The state and/or county must agree to participate by providing matching non-federal funds.

8. The state must agree to pay for non-recurring expenses up to a maximum of $2,000. The expenses will be eligible for federal reimbursement. States currently pat 50% of the cost of non-recurring expenses relative to the adoption of a special needs child under the Title IV-E adoption assistance program.

9. Age and continuing eligibility requirements for relative guardianship assistance are the same as for children receiving Title IV-E adoption assistance.

10. Relative Guardians will have the same right to appeal adverse hearings decisions as adoptive parents under the provisions of the Code of Federal Regulations at 45 CFR 205.10

Eligibility

In order to be eligible for relative guardianship assistance,

a. The child must be removed from his or her home via a voluntary agreement or as the result of a judicial determination that remaining in the home is contrary to the child’s welfare.

b. The child must be eligible for Title IV-E foster care maintenance while residing for at least 6 consecutive months in the home of the prospective relative guardian. Note: This provision suggests that the relative guardian must be certified as a foster parent, but the full implications of this requirement are not entirely clear yet.

c. It must be determined that a return home or adoption are not appropriate options for the child.

d. The child must demonstrate a strong attachment to the prospective relative guardian and the relative guardian a strong determination to caring permanently for the child.

e. Any child who has attained the age of 14 must be consulted about entering into to the relative guardianship.

Siblings

Siblings of eligible children may be placed with the relative guardian if it is deemed in the children’s best interest. In such cases, the sibling of the eligible child would also be eligible for negotiated assistance.

Effective Date

If relative guardianship assistance programs requires state legislation other than a fiscal appropriation, the effective date is the first day after the first regular session of the legislature that takes place one year after the effective date of the Fostering Connections to Success and Increasing Adoptions Act of 2008. The effective date of the law is October 7, 2008. This means that the effective date for beginning the relative guardianship assistance program would be the day after the close of the legislative session that ends after October 7, 2009.

In cases where no legislation is needed, the effective date of the relative guardianship assistance program is the quarter that begins on or after October 7, 2008.

Congress Amends Title IV-E Adoption Assistance Requirements by Phasing Out the AFDC Relatedness Requirement

2008-12-09T16:20:00.004-05:00

President George W. Bush signed new Title IV-E adoption assistance legislation into law on October 7, 2008. The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110-351), phases out ADC-relatedness as a eligibility requirement and provides federal financial participation for certain relatives serving as guardians for special needs children. The House of Representatives passed the legislation, identified as HR 6893, on September 17 and the Senate followed suit five days later on September 22.

A clear and comprehensive summary of the law, entitled “Federal Law Overhauls U.S. Child Welfare Financing,” appears on the web site of North American Council on Adoptable Children (NACAC). That being the case, we will concentrate on the provisions affecting eligibility for adoption assistance. In the next article, we will focus on the new provisions for kinship care assistance.

Adoption Assistance

On the first day of federal fiscal year 2010, which begins on October 1, 2009, children ages 16 and older will no longer be required to meet the AFDC-relatedness requirements in order to qualify for Title IV-E adoption assistance. Two other groups will also be exempt from the requirement.

a. Children who have been state foster care of 60 consecutive months; and

b. Siblings of age eligible children who are placed together with the same family.

In order to qualify for adoption assistance, the children in the above categories must:

1. Meet the federal special needs definition; and

2. Be in the care of a public or private agency at the time adoption proceedings are initiated as a result of an involuntary removal and placement in foster care through a judicial determination that continuation in the home was contrary to the child’s welfare; or

3. Be in the care of a public or private agency at the time adoption proceedings are initiated as a result of voluntary agreement or voluntary relinquishment (permanent surrender in Ohio). In such cases, the requirement for a judicial determination within 6 months of placement to the effect that continuation in the home is contrary to the welfare of the child would still pertain; or

4. Reside in a family foster home or child care institution with a parent who is also a minor as the result of an involuntary removal and judicial determination that continuation in the home was contrary to the child’s welfare, a voluntary agreement or voluntary relinquishment; or

5. Meet all of the requirements for SSI (Title XVI) prior to finalization of the adoption.

On October 1, 2010 (federal fiscal year 2011), the AFDC relatedness requirement will not apply to children who are 14 years of age or older on that date. Phase out of AFDC relatedness continues as follows:

FFY 2012 (October 1, 2011) – Children 12 and older;
FFY 2013 (October 1, 2012) – Children 10 and older;
FFY 2014 (October 1, 2013) – Children 8 and older;
FFY 2015 (October 1, 2014) – Children 6 and older;
FFY 2016 (October 1, 2015) – Children 4 and older;
FFY 2017 (October 1, 2016) – Children 2 and older;
FFY 2018 (October 1, 2018) – All children.

The AFDC Relatedness Requirement

From the beginning, the Title IV-E adoption assistance and foster care maintenance programs both required that a child had to be placed from the home of a specified relative in which he or she met the qualifications or would have qualified for the AFDC (federal welfare) program had an application been completed. Advocates consistently argued that the AFDC relatedness requirement was irrelevant as an eligibility standard for adoption assistance because when the birth parents’ rights were terminated, the child was essentially a legal orphan, a family of one. After 1996, the AFDC requirement became an absurd anachronism. The 1996, federal welfare reform law (Public Law 104-193) abolished the AFDC program and replaced it with the Temporary Assistance to Needy Families (TANF). Instead of striking AFDC relatedness as an eligibility requirement for adoption assistance on the grounds that the AFDC program no longer existed, federal officials retained it by creating a “look back date.” Question of Section 8.2 of the Child Welfare Policy Manual sets July 16, 1996 as the AFDC “look back date.” This means that in order to qualify for Title IV-E adoption assistance, a child had to meet the AFDC standards as they existed on July 16, 1996.

The farther away one gets from 1996, the harder to reconstruct a hypothetical AFDC-relatedness test. The Fostering Connections to Success and Increasing Adoptions Act of 2008 marks the beginning of the end of this obsolete requirement for adoption assistance.

Erie County Adoption Assistance Policy Manual Out of Compliance with State and Federal Laws

2008-09-13T11:19:00.003-04:00

On its web site, the Public Children Services Association of Ohio (PCSAO) lists an Erie County policy manual on adoption assistance under the heading “Tools Develped by PCSAO” The designation of the Erie County manual as a “tool” amounts to an endorsement by PCSAO, an organization that represents county child welfare agencies in the state.

Recent adoption assistance cases in nearby Ohio counties, suggests that Erie County has generously shared its approach to negotiating adoption assistance agreements with its sister agencies. Unfortunately, the manual, Dear Prospective Adoptive Parent suffers from major defects. While touting its approach to negotiating adoption assistance as cutting edge, in reality its provisions violate federal and state law in two significant ways. As a consequence, the agency has proposed adoption assistance payments as low as $150 per month. This rate is based on a formula applied in a hypothetical scenario in the Erie County policy manual. Currently, the state will provide the non-federal matching funds for adoption assistance payments of up to $300 per month, a rate which costs the county agency nothing.

Error Number One

Erie County’s policy maintains that federal adoption assistance may not be used to cover expenses that would be incurred by any “normal family.” This division of adoption assistance into acceptable and unacceptable expense categories is clearly contrary to federal policy as set forth in Section 8.2D.4 and Section 8.2D.1 the Child Welfare Policy Manual.

Question 1 in Section 8.2D.4 of the Child Welfare Policy Manual, notes:

“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.”

The Child Welfare Policy Manual also states that adoptive parents have complete discretion to decide how adoption assistance payments may be used on behalf of their children, indicating that it may be used for to meet ordinary daily needs or those related to a disabling medical or mental health condition Section 8.2D.1 of the Child Welfare Policy Manual provides:

“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).

Error Number Two

Once Erie County applies a formula of acceptable and unacceptable expenses to determine the adoption assistance payment. The parents are then told what the child is entitled to receive. There is no further negotiation. Negotiation of the amount of adoption assistance in the form of a written agreement based upon the child’s needs and the family’s overall circumstances is a cardinal principal of the program. In failing to engage in negotiation, the Erie County policy violates federal law at 42 U.S.C. 673 (a) (3), Section 8.2D.4 of the federal Child Welfare Policy Manual and rule 5101:2-49-05 of the Ohio Administrative Code (OAC).

The Need for Training

The Ohio Department of Job and Family Services (ODJFS) should contact Erie County, PCSAO and the other child welfare agencies across the state and inform them that Erie County’s policy of negotiating adoption assistance agreements is in conflict with state and federal law. The proliferation of dubious practices by county agencies reinforces the need for comprehensive training which includes a model for the negotiation of adoption assistance agreements.

Ohio Ranks Near the Top in Providing Access to Adoption Assistance

2008-09-09T11:07:00.008-04:00

Historically, Ohio has ranked high among the states in the percentage of special needs adopted children that were eligible for federal Title IV-E adoption assistance. In a 2008 study, The Value of Adoption Subsidies the North American Council on Adoptable Children found that Ohio ranked third highest in 2005.

States with Highest and Lowest Percentages of Adoptions of Children Receiving Federally Supported Subsidies (2005)

Highest Percentages

New Hampshire 96.0%

Kentucky 95.9%

Ohio 95.5%

Washington 87.0%

New Jersey 84.4%

New Mexico 84.4%

Mississippi 83.5%

Idaho 81.9%

New York 81.0%

Missouri 78.4%

California 77.9%

Nevada 77.2%

Arizona 77.1%

Oregon 76.6%

Lowest Percentages

District of Columbia *9.4%

Puerto Rico 19.8%
West Virginia 20.9%
Delaware 24.4%
Alabama 35.2%
Massachusetts 35.3%
Georgia 39.8%
Nebraska 45.2%
North Dakota 45.4%
Iowa 47.4%
Wyoming 49.2%
Rhode Island 49.3%
Connecticut 49.9%

*Source AFCARS data. The Washington, D.C. Department of Child and Family Services Agency reports a penetration rate for 2005 of 68 percent. The discrepancy is due, at least in part, to IV-E determinations being completed after data is submitted to AFCARS.

Ohio’s record of inclusiveness represents years of education and advocacy and indicates the state has taken to heart the federal mandate to “actively promote the adoption assistance program” found in the Code of Federal Regulations at Sec. 1356.40 (f). During an era, when some states have limited access to adoption assistance, Ohio can justifiably be proud of this achievement. See table below

Ten States with the Greatest Percentage Decrease of Children Receiving Federally Supported Adoption Subsidies (2000–2005)

State Decline

District of Columbia 39.8%
Delaware 34.8%
West Virginia 28.8%
Colorado 24.7%
Vermont 19.6%
Alaska 19.5%
Arkansas 15.4%
Maine 14.9%
Michigan 14.9%
Minnesota 13.5%

Source: The Value of Adoption Subsidies: Helping Children Find Permanent Families
North American Council on Adoptable Children, May 2008

The Value of Adoption Subsidies and Ending The Foster Care Life Sentence, a 2006 study by Children’s Rights of New York both validate Ohio’s policy by showing the crucial role played by adoption assistance in helping parents incorporate special needs foster children into permanent families. In a time of tight budgets and rule revisions, Ohio should resist any temptations to tighten access to IV-E adoption assistance in pursuit of short term savings. To do so would sully an impressive history of support for the best interests of special needs children and work against the state’s overriding goal of securing permanent homes for abused and neglect children.

Errors in the Negotiation of Adoption Assistance; The Need for a Consistent Model

2008-09-02T17:53:00.008-04:00

A number of Ohio county agencies insist that prospective adoptive parents agree to unreasonably low federal Title IV-E adoption assistance payments. Frequently, these agencies base their positions on claims that are incompatible with state and federal law. The most common error is the assumption that monthly adoption assistance payment rates must be based only on costs that are directly related to treatment of the child’s special needs, which are not otherwise covered by health insurance, Medicaid or some other benefit. Predictably, this narrow position results in absurdly low offers of adoption assistance which responsible parents have little choice but to oppose.

Ohio, unlike many states, does not have rate schedules of adoption assistance payments based upon age ranges and levels of care. State A, for example, might feature three rate schedules: Regular, Special and Exceptional, each with age ranges from 0 – 5; 6 – 12 and 12 and up. The number of separate rate schedules varies from state to state. Ohio relies on case by case negotiation. Therefore, it is vitally important that all parties understand and abide by federal and state guidelines. Alas, such is often not the case.

After a child is determined eligible for adoption assistance, the parents negotiate an adoption assistance agreement with the county agency that made the eligibility decision. The county agency, known in state regulations as the public children’s services agency or PCSA, represents the Ohio Department of Job and Family Services, the designated state agency charged with oversight of the federal Title IV-E foster care maintenance and adoption assistance programs.

Federal law, the federal Child Welfare Policy Manual and rule 5101:2-49-05 of the Ohio Administrative Code all specify that the negotiation of Title IV-E adoption assistance agreements must be based on a consideration of the child’s needs and family circumstances.

The Child Welfare Policy Manual affirms that

“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.” (See Question 3, Section 8.2D.4 “TITLE IV-E, Adoption Assistance Program, Payments, Rates”)

Federal policy recognizes that special needs and family circumstances are inextricably linked. It is quite common for adoptive parents to give up careers in order to become full-time caregivers, with a corresponding loss of income, health insurance. Parents find themselves devoting increased amounts of time, taking a child to therapy and negotiating with school officials over the child’s academic program and emotional adjustment. The adoptive parents of an emotionally damaged child must devote an extraordinary amount of energy to care and supervision. Abused and neglected children may have irregular sleeping habits, destroy family property and pose a threat to family pets and siblings.

The increase in parental responsibilities, often accompanied by putting a career on hold, enables the parent to more effectively meet the child’s emotional needs, but often results in a loss of family income which, in turn, makes it more difficult to cover other expenses. This is the type of problem that the federal Child Welfare Manual contemplates when it refers to “the adoptive family's capacity to incorporate the child into their household in relation to their lifestyle, standard of living and future plans, as well as the overall capacity to meet the immediate and future needs (including educational) of the child.”

In recognizing the obvious the impact of a child’s special needs on family circumstances and visa versa, federal policy makes no distinction between the specialized and ordinary needs of the child. Question 1 in Section 8.2D.4 of the Child Welfare Policy Manual, notes:

“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.”

“Unlike other public assistance programs in the Social Security Act,” it explains, “the title IV-E adoption assistance program is intended to encourage an action that will be a lifelong social benefit to certain children and not to meet short-term monetary needs during a crisis.” In question 2 of Section 8.2D.4 the Manual adds, “agreements that are not negotiated to the specific needs of the adoptive child and the circumstances of the family, however, are not permissible.”

The needs of the child and circumstances of the family are intended to function as broad categories. The adopting parents have the best idea of current and anticipated costs as well as the adjustments and sacrifices they will need to make on behalf of a child whose legal ties to his or her birth family have been permanently severed. Ultimately, the negotiation should address this question: Given your situation and the child’s current and anticipated needs, what amount of monthly adoption assistance payment will enable you to have a reasonable chance of providing a permanent, healthy family for the child?

Adoptive parents are both enraged and amused by the all too frequent suggestions that their quest for adoption assistance is motivated by unrealistic expectations or outright greed. While adoption assistance often serves as a crucial source of support, adults who devote their lives to caring for severely abused and neglected children are no strangers to sacrifice. Adopting a special needs child is an admirable calling, but as a money making scheme leaves much to be desired.

Ending The Foster Care Life Sentence, a 2006 study by Children’s Rights of New York, surveyed 250 adoptive and prospective adoptive parents from Illinois, Kentucky, Minnesota, Missouri, Oregon, and Texas and found “of parents who had already adopted, 65% said they could not have done so without an adoption subsidy.”

While adoption assistance provides sorely needed help, only the most naïve parent expects the subsidy relieve them of financial burdens associated with raising a special needs child. The 2006 Children’s Rights study determined:

“more than half (57%) of survey respondents who had already adopted said the subsidy amount was not sufficient to meet the child’s needs. Of those survey respondents considering adoption, 59% anticipated that the available subsidy would not be sufficient. Additionally, 7% of adoptive and prospective adoptive parents who responded that the subsidy was sufficient to meet the child’s current needs indicated uncertainty that the subsidy would be sufficient to meet the child’s needs in the future.”

Adoption Assistance payments are typically less than foster care payments in Ohio. HITTING THE M.A.R.C.; Establishing Foster Care Minimum Adequate Rates for Children, a 2007 study by Children’s Rights, estimated that current foster care rates did not provide adequate support.

A 2008 report by the North American Council on Adoptable Children, notes that in Fiscal Year 2006, “59 percent of children adopted from foster care were adopted by foster parents and 26 percent were adopted by relatives.” According to the report, entitled The Value of Adoption Subsidies,

“most foster families are in the low to lower middle income range, and many grandparents and other relatives who care for children in foster care are on fixed incomes. Without subsidies, many parents would not have the means to adopt children from foster care. Just as foster care maintenance payments do not cover the true costs involved in the basic care of a child, adoption subsidies are modest financial supports that provide adoptive families with additional resources to meet their children’s needs.”

In sum, the adoption assistance rate sought by parents is best described as an essential, albeit modest supplemental payment that will give them a fighting chance of providing a permanent home for their child.

Why don’t negotiations follow federal and state laws?

There appear to be two primary reasons why a number of Ohio county agencies consistently fail to follow federal and state guidelines in negotiating adoption assistance agreements.

ODJFS has not established a statewide “best practices” model that addresses the negotiation of adoption assistance agreements. Nor, has the state agency conducted in depth training on this crucial area of adoption assistance for well over a decade.

As a consequence, a number county case workers are poorly informed about relevant regulations and hearing officers render inconsistent decisions. Members of both groups often lack a coherent conceptual framework that captures the essential purpose of adoption assistance. Is the purpose of the program, after all, to actively look for ways to help special needs children secure support or to devote most of the worker’s time and energy to a search for reasons to deny as much support as possible?

After all these years, treating adoptive parents as partners and entering into negotiations with no pre-determined outcome is still foreign to agency culture.

Most federal assistance programs combine eligibility with the amount of benefit by applying means tests. Family income resources and size determines the monthly payment. Eligibility and negotiation of a monthly payment are not only separate steps in the adoption assistance program, but there is no quantitative formula for arriving at a proper level of support. How much monthly adoption assistance is fair or adequate? Such questions rely on perceptions of the child’s overall needs and the family’s circumstances. Reasonable people can disagree about such matters.

The process of negotiation is not completely open-ended, however. The federal portion of adoption assistance in Ohio accounts for around 60% of the payment. Federal financial participation is limited to the rate of support the child would receive in a foster home suitable to his or her level of care. This foster care rate functions as a practical ceiling in the negotiation of adoption assistance agreements. Since a majority of special needs children are adopted by their foster parents, the foster care payment takes on even more relevance as a guideline, particularly since the rate was based on level of care assessments made by the county agency.

The foster care rate can and should function as reference point for both the agency and the parents. As such, the parties might end up a few hundred dollars apart in negotiations where the foster care payment was a specialized rate of $1,400 a month, but a situation in which the agency insisted on an adoption assistance payment that was less than half of the foster care rate would be relatively rare. Unfortunately, that situation is all too common today.

The relative financial participation by the state and counties in providing the non-federal matching funds for the IV-E adoption assistance program has also been a long standing source of conflict over the negotiation of adoption assistance agreements. We will address this problem in a future article.

The Inadequacy of Foster Care and Adoption Assistance Payment Rates.

2008-07-04T13:10:00.011-04:00

Foster Care Minimum Adequate Rates for Children (“Foster Care MARC”)

An October study 2007 of foster care rates across the country reached the provocative conclusion that “on average, across the U.S., current foster care rates must be raised by 36 percent in order to reach the Foster Care Minimum Adequate Rates for Children (the “Foster Care MARC”). The Foster Care MARC represents the projects’ calculations on the minimum expenses involved in providing care for a child in a foster home. According the reports’ estimates “in some states, rates are less than half of what it actually costs to care for a child in foster care.

The Inadequacy of Adoption Assistance Rates

According a 2008 study by the North American Council on Adoptable Children (NACAC), The Value of Adoption Subsidies, “59 percent of children adopted from foster care were adopted by foster and parents and 26 percent were adopted by relatives.” Since adoption assistance rates more often than not fall below foster care rates, it is clear that adoption assistance rates are also inadequate.

Ending The Foster Care Life Sentence, a 2006 study by Children’s Rights of New York, surveyed 250 adoptive and prospective adoptive parents from Illinois, Kentucky, Minnesota, Missouri, Oregon, and Texas. Children’s Rights found that 47% of the survey respondents received an adoption subsidy that was lower than the foster care rate. Thirty nine percent received the same amount of adoption assistance as foster care support and 14% received a higher level of adoption assistance, probably due to additional state funded support.

In Fiscal 2001, the median foster care rate in Ohio was $590 per month, while the median Adoption subsidy rate was $544 per month. The median adoption subsidy payment probably reflects the relatively higher levels in the larger counties such as Cuyahoga (Cleveland) and Montgomery (Dayton). In many Ohio counties the median and mean adoption assistance rates are noticeably lower than $544, even in 2008. (See Understanding Adoption Subsidies:An Analysis of AFCARS Data, January 2005).

The 2008 NACAC report notes:

"Most foster families are in the low to lower middle income range,23 and many grandparents and other relatives who care for children in foster care are on fixed incomes. Without subsidies, many parents would not have the means to adopt children from foster care. Just as foster care maintenance payments do not cover the true costs involved in the basic care of a child,25
adoption subsidies are modest financial supports that provide adoptive families
with additional resources to meet their children’s needs."

It is hardly surprising that the Children’s Rights survey found:

"more than half (57%) of survey respondents who had already adopted said the subsidy amount was not sufficient to meet the child’s needs. Of those survey respondents considering adoption, 59% anticipated that the available subsidy would not be sufficient. Additionally, 7% of adoptive and prospective adoptive parents who responded that the subsidy was sufficient to meet the child’s current needs indicated uncertainty that the subsidy would be sufficient to meet
the child’s needs in the future."

The Foster Care MARC Study

The report, entitled HITTING THE M.A.R.C.; Establishing Foster Care Minimum Adequate Rates for Children, represents the joint efforts of Children’s Rights of New York in collaboration Ruth H.Young Center (RYC) for Families and Children at the University of Maryland School of Social Work and the National Foster Parent Association (NFPA). The project compared its “minimum adequate rates for foster children state foster care rates collected from April 2007 through July 2007.

According to Foster Care MARC estimates, foster care rates are inadequate to cover the food, clothing school supplies the basic expenses of caring for the child cited in federal and state laws. Noting that foster care rates do not typically rank very high among state budget priorities, the report concludes that “foster care rates in many states do not appear to be based on a real assessment of children’s basic needs.

Thus, it is no surprise that foster parents and other advocates routinely report that current rates fall far short of the actual costs of providing care. And, if foster parents are not financially able to pick up the shortfall by paying out of their own pockets for expenses that the state or locality is legally obligated to cover, then children may do without.

If the Foster Care MARC report is accurate, the study also calls the adequacy of adoption assistance rates into question, in as much as they are consistently lower than levels of support for children in foster homes. In the end, when all the warm rhetoric is expended on the value of adoption, it ranks even farther far down the list of state budget priorities, than foster care in spite of studies that claim the advantages of a permanent family over the problems encountered by young adults who age out of the foster care system. (See Value of Adoption Subsidies).

In 2007, average monthly foster care rates ranged from a low of $226 in Nebraska to $869 in the District of Columbia. Given the report’s focus on meeting the foster child’s daily care needs, the figures cited do not reflect the more specialized “difficulty of care rates” paid in support of foster children with severe special needs.

The Foster Care MARC includes the allowable expenditures in the Federal Title IV-E Foster Care Maintenance Program, food, clothing, shelter, daily supervision, school supplies, personal incidentals, insurance and travel for visitation with a child’s biological family.” The MARC methodology establishes basic foster rates for each of the 50 states and the District of Columbia by:

· analyzing consumer expenditure data reflecting the costs of caring for a child;

· identifying and accounting for additional costs particular to children in foster care;

· and applying a geographic cost of living adjustment

The resulting monthly cost figures for minimum adequate levels of support cover basic daily needs as well as what the report refers to as “normalizing” activities. The report contends that sports, art and other activities “are particularly important for children who have been traumatized or isolated by their experiences of abuse and neglect and placement in foster care.”

Interestingly, adoptive parents frequently mention such programs in negotiating adoption assistance agreements with state and county agencies. Although, they clearly fall under the rubric of meeting the child’s “ordinary and special, current and anticipated needs” set forth in the federal Child Welfare Policy Manual as criteria for negotiation, agencies frequently attempt to reject the cost of “normalizing: activities and indeed of all ordinary daily expenses as unallowable expenses in deliberations concerning the amount of adoption assistance.

The Foster Care MARC cost estimates do not include the cost of travel allowing the child visits with members of the birth family or child care for working foster parents. The authors explain that “given the variability in these expenditures from case to case, states and localities should reimburse foster parents based on their actual expenditures, in addition to the Foster Care MARC.”

The report’s authors also claim that the Foster Care MARC provides superior standard to annual U.S. Department of Agriculture (USDA) estimates of the costs of raising children because USDA estimates “include expenses that are not typically part of a foster care rate, such as mortgage or rent, health care and education, and they exclude other expenses particular to the care of children in foster care.” It should be noted that the USDA expense categories do apply to adoption assistance negotiations which are required to consider both the “needs of the child” and “circumstances of the family” and place no strictures on how adoptive parents determine to sue adoption assistance payments on behalf of their children.

According to the report, the national averages representing the Foster Care Marc compare with the 2007 national foster care payments as follows:

Age 2: Average Monthly MARC Rates - $629 National Monthly Foster Care Averages - $488

Age 9: Average Monthly MARC Rates - $721 National Monthly Foster Care Averages - $509

Age 16: Average Monthly MARC Rates - $790 National Monthly Foster Care Averages - $568

Based on Cost of Living estimates, the MARC Foster Care Estimates for Ohio were:

Age 2 Foster Care MARC Estimates Ohio - $635 National Monthly Foster are Averages - $488
Age 9 Foster Care MARC Estimates Ohio - $727 National Monthly Foster are Averages - $509
Age 16 Foster Care MARC Estimates Ohio - $797 National Monthly Foster are Averages - $568

Draft of Revised Title IV-E Adoption Assistance Rules

2008-04-22T16:36:00.001-04:00

The draft of Ohio’s revised Title IV-E adoption assistance rules are still in clearance as of April 26, 2008. The Adoption Services Section at the Ohio Department of Job and Family Services (ODJFS) is waiting for responses on policy questions submitted to federal authorities before moving forward. The responses are expected soon.

After receiving the policy conclusion from Washington, the Adoption Services Section will respond to the public comments on the draft rules and establish a working group to complete another version before the rules are scheduled for a public hearing. I expect to serve on the working group. Please express any concerns about the Title IV-E adoption assistance rules to my e-mail address at tohanlon@columbus.rr.com and I will pass them on to the working group.

You can follow to progress of the adoption assistance rules by going to the ODJFS web site at http://jfs.ohio.gov//. Click on Adoption. Click on Site Index. Click on Clearances. Look on the left side of the page and click on Public Hearing Notices and Rule Publications. Click on http://www.registerofohio.state.oh.us/ at the top of the page. Click on Upcoming Hearings of Proposed Rules and look under Job and Families Services, Social Services.

Cuyahoga County Announces a Decrease in County Funding for Adoption Assistance in Probable Violation of Federal and State Law

2008-01-29T17:04:00.000-05:00

A recent communication by the Cuyahoga County Department of Job and Family Services may violate federal and state adoption assistance laws and has significant implications for adoptive families across the state. On November 27, 2007, the Cuyahoga County Department of Job and Family Services, sent a letter to all adoptive families with existing Title IV-E adoption assistance agreements. The “Important Notice to Adoptive Assistance Payments” informed recipients that amount of support provided by the county was going to decrease. The county’s decision was prompted by the knowledge that the state was increasing its level of financial participation as of January 2008.

As we noted in December 30, 2007 Blog, State Increases Non-Federal Financial Participation in Federal Title IV-E Adoption Assistance and State Adoption Maintenance Subsidy Programs, ODJFS will provide the non federal portion (about 40%) of federal Title IV-E adoption assistance payments up to a maximum $300 per month. Previously the state’s financial participation was limited to payments of $250 per month. This means that for every IV-E adoption assistance payment of $300 per month, federal financial participation will be approximately $180 and state financial participation about $120. As before, public county children services agencies are responsible for the non-federal portions of any amount of assistance over $300 per month.

The increase in state financial participation according to ODJFS Family, Children and Adult Services Procedure Letter No. 129 of December 18, 2007 applies to all initial Title IV-E adoption assistance agreements completed after January 1, 2008. In addition,

Effective with the January 2008 subsidy payments, any adoption subsidy agreement greater than $300 per month, the state's participation will automatically be increased up to the maximum of $300. This increase does not change the public children services agency's (PCSA) responsibility of providing the county match for the AA payment in excess of $300 per month.

On the other hand, “for any adoption subsidy agreement equal to or less than $250 per month, the state's participation will not be automatically increased. In order for an increase to be issued, a revised adoption subsidy agreement must be entered into by the PCSA and adoptive parent(s).”

Does the action taken by ODJFS permit county agencies to engage in unilateral cuts in county support without negotiating an amendment to the individual child’s adoption assistance agreement as long as the total amount of adoption assistance is not reduced? This is Cuyahoga County’s strategy for cost shifting and if acceptable can only encourage other county agencies to follow suit.

Clearly, ODJFS as the authorized Title IV-E agency may make across the board increases in adoption assistance. County agencies, however, may not make unilateral changes in adoption assistance. Ohio Administrative Code rule 5101:2-49-12(D) in reflecting federal law provides that:

A PCSA shall not modify the amount of the AA payment without prior notification
and agreement by the adoptive parent(s) unless the adoptive parent(s) does not
comply with the requirements to determine continuing eligibility requirements
pursuant to rule 5101:2-49-10 of the Administrative Code. In all other cases the
PCSA shall not modify the amount of the AA payment without prior notification
and agreement by the adoptive parent

By reducing the county’s share of funding, Cuyahoga County is clearly in violation of the law. The county’s unilateral reduction in support prevents individual special needs adopted children from receiving an increase in their monthly adoption assistance benefit. The state’s increase in financial participation is its first since 1986. Obviously, it was intended to increase levels of support for adoption assistance. Given that Cuyahoga’s cuts in adoption assistance result in a net loss to adoptive children by essentially wiping out the state increase, the agency’s action is illegal.

Neither Cuyahoga, nor any other Ohio PCSA may reduce adoption assistance without negotiating with individual adoptive families and securing an agreement to modify the individual child’s adoption assistance agreement. Families affected by Cuyahoga’s actions or those of other agencies should contact the ODJFS. I would suggest contact Rhonda Abban by e-mail at ABBANR@odjfs.state.oh.us, Sandra Holt, Deputy Director for Family, Children and Adult Services through her administrative assistant Julia Bourdreau at bourdj@odjfs.state.oh.us and Director Helen Jones-Kelley through Laquita Kelly at KELLYL@odjfs.state.oh.us.

New Federal Policy Interpretation: State May Not Reduce or Suspend Adoption Assistance if Parents Fail to Complete and Return Annual Eligibility Form

2008-01-10T17:04:00.000-05:00

The North American Council on Adoptable Children (NACAC) reports a new federal interpretation published on December 12, 2007 in response to the question:

Can a State suspend or reduce a title IV-E adoption assistance subsidy if the adoptive parents fail to renew or recertify the adoption assistance agreement?

The answer, which will be posted soon in Section 8.2B.9 of the federal Child Welfare Policy Manual, is “no.” The policy issuance acknowledged that adoption parents were responsible for keeping agencies informed about “material changes” that might affect the amount of adoption assistance, but

a State cannot reduce or suspend adoption assistance if the adoptive parents fail to reply to the State’s request for information, renewal or recertification of the agreement. Once an eligible child is receiving title IV-E adoption assistance pursuant to an agreement, adoption assistance continues until either the adoptive parents concur to a change or one of the statutory conditions are met for termination of the assistance (section 473(a)(4) of the Social Security Act and Child Welfare Policy Manual Section 8.2B.9 Q/A #2). Therefore, suspensions or reductions in a title IV-E adoption assistance payment are not permitted without the concurrence of the adoptive parents under section 473(a)(3) of the Act .

The federal policy issuance affects Ohio Administrative Code (OAC) rule 5101:2-49-10, Paragraph A, which provides that

The public children services agency (PCSA) responsible for the adoption assistance (AA) agreement shall provide the adoptive parent(s) with the JFS 01451B "Title IV-E Adoption Assistance Continuing Eligibility Determination" (10/2006) to be completed annually or whenever there is a significant change in the family situation. Within fourteen working days of receipt of the JFS 01451B the adoptive parent(s) shall complete and return the JFS 01451B to the PCSA.

The policy interpretation makes it clear the agency may not suspend or reduce the child’s adoption assistance if the adoptive parents fail to complete and return the annual continuing eligibility form within fourteen days or if they ignore it altogether. Parents would only be obliged to respond if they experienced significant changes in their circumstances that might suggest a reduction in the amount of adoption assistance.

Given that the cost of raising children, especially special needs children, tends to increase over time. Instances in which the child’s needs or family circumstances improve to such an extent that a reduction in adoption is warranted are rare. On the other hand, in a much more likely scenario, adoptive parents may request a modification to an existing adoption assistance agreement for the purpose of increasing the monthly payment at any time.

Policy Brief: Ohio is in Violation of It's IV-E State Plan; The Child Welfare Policy Manual as the Authoritative Source of Federal Law

2008-01-03T11:01:00.000-05:00

In the previous posting of Wednesday January 2, 2008, I requested adoptive parents and advocates to e-mail the Ohio Department of Job and Family Services (ODJS )and request that the Director Helen Jones-Kelley issue a procedure letter establishing the online federal Child Welfare Policy Manual as the authoritaive source for interpreting Title IV-E adoption assistance law. Current provisions in Ohio's revised 2007 adoption assistance regulations found in Section 5101:2-49- of the Ohio Adminstrative Code are out of compliance with federal law and as a consquence, eligible special needs children are being denied federal adoption assistance. (See the January 2, 2008 posting for details).

The following is a detailed policy brief presented to ODJFS in a November meeting. At the end of the meeting, I was told that the Department would contact me with an answer to the request outlined below. I have contacted ODJFS twice since that time and have received no response. Delay is costing adoptive families the assistance to which their children are clearly eligible.

The Problem: The Ohio Department of Job and Family Services under the Taft Administration never communicated to county agencies, ODJFS hearing officers and ODJFS Legal Services staff that:

The online Child Welfare Policy Manual “conveys mandatory policies” and provides authoritative interpretations of federal Title IV-E laws.

Applicable provisions in the Child Welfare Policy Manual supersede any contrary, inconsistent or incompatible provisions in the Ohio Administrative Code (OAC).

The revised January 2007 OAC Title IV-E adoption assistance regulations found in OAC 5101:2-49 contain several provisions that are out of compliance with federal law as set forth in the federal Child Welfare Policy Manual.

As a consequence, eligible special needs children have been denied access to the adoption assistance program on the basis of provisions in the OAC that are out of compliance with federal law. The most dramatic example of this took place in the Cress hearing in which the hearing officer announced that the key sections of the OAC were incompatible with federal law as interpreted by the Child Welfare Policy Manual. She said however that she was only authorized to utilize the OAC in rendering her decision. The denial was upheld at the administrative review level by an ODJFS staff attorney who said that hearings only involved the administrative code. (See hearing, Appeal 1358848).

Federal Region V official Mary Doran was somewhat astonished to learn that the significance of the Child Welfare Policy Manual. as the primary means of administering the federal Title IV-E program and an authoritative source for the interpretation of federal law had not been communicated by ODJFS to county agencies, hearing officers and other appropriate parties. This omission would not have been revealed in IV-E State plan reviews because it was assumed by federal administrators that ODJFS would have informed relevant parties as a matter of course.

We request that the Director of ODJFS issue a procedure letter informing county agencies, hearing officers and the ODJFS Office of Legal Services that the Child Welfare Policy Manual is the authoritative interpretation of federal Title IV-E law and supersedes the OAC where there are areas of incompatibility, inconsistency or conflict.

The Child Welfare Policy Manual can then serve as a means for review of the revised January 2007 adoption assistance rules. I had a productive meeting with Rhonda Abban a few weeks ago regarding two problems in the existing rules. Ms. Abban is both knowledgeable and helpful.

Finally, the state adminstrative hearing decision in Appeal 1358848 should be reversed based upon the failure to recognize the primacy of federal law over the OAC.

Detailed Argument

Throughout their existence , the federal Children's Bureau of the Administration for Children and Families has administered Title IV-E adoption assistance and foster care maintenance programs though various policy issuances including Policy Information Questions (PIQs), Information Memoranda (IMs) and Policy Announcements (PAs). Unlike other federal entitlement programs, their are few rules in the Code of Federal Regulations that pertain to the adoption assistance program.

Around 2002, federal officials organized the various policy issuances into an online Child Welfare Policy Manual, which is continually updated in light of inquiries from the states. Since that time the Child Welfare Policy Manual has been the means through which the Children’s Bureau has interpreted federal law and administered the adoption assistance program. Ohio has pledged to abide by the Child Welfare Policy Manual in its IV-E State Plan as a Condition for Federal Financial Participation.

All, states, including Ohio, must submit a IV-E state plan as a condition for federal financial participation. In the introduction to the Ohio IV-E state plan, ODJFS pledges to abide by all applicable federal laws, regulations and official policy issuances as a condition for receipt of federal funding. (Emphasis added).
These "official" policy issuances have been consolidated in the online federal Child Welfare Policy Manual.

The introduction to the IV-E State Plan reads in pertinent part as follows:

As a condition of the receipt of Federal funds under title IV-E of the Social Security Act (hereinafter, the Act), the Agency (Name of State Agency) (hereinafter "the State Agency") submits herewith a State plan for the program to provide, in appropriate cases, foster care, independent living (at State option) and adoption assistance under title IV-E of the Act and hereby agrees to administer the program in accordance with the provisions of this State plan, title IV-E of the Act, and all applicable Federal regulations and other official issuances of the Department. (Emphasis added).

A copy of Ohio’s IV-E State Plan may be found by going to the ODJFS web site at: http://jfs.ohio.gov/ocf/publications.stm and scrolling down to State Plans. A template of IV-E state plans may be found on the federal Children’s Bureau Web Site: at Child Welfare Policy Manual conveys mandatory policies that have their basis in Federal law and/or program regulations. It also provides interpretations of Federal statutes and program regulations initiated by inquiries from State Child Welfare agencies or ACF Regional Offices."

The site is http://www.acf.hhs.gov/programs/cb/laws_policies/index.htm#cwpm

Hearing decision (Appeal 1358848) clearly demonstrates that hearing officers and county agencies have consistently ignored quotations and cites from the Child Welfare Policy Manual in rendering decisions on eligibility and amounts of assistance, even when they blatantly conflict with OAC regulations. For years, I have encouraged parents to include both OAC rules and sections of the Child Welfare Policy Manual in their hearing presentations, but the latter is always ignored until the appeal reaches the courts. Interestingly courts in states across the country, particularly the Commonwealth Court of neighboring Pennsylvania have often based their decisions on federal policy issuances. I can supply a number a number of examples of such decisions that date back to the 1990s.

Request

Given the fact that otherwise eligible special needs children are being denied access to adoption assistance, an official communication from ODJFS directing county agencies, hearing officers and ODJFS Legal Services staff to abide by the Child Welfare Policy Manual would be the quickest and most efficient means of addressing this serious compliance problem. The Child Welfare Policy Manual could then be used as the basis for a thorough review of the revised 2007 OAC adoption assistance rules. I have already submitted policy briefs and had a productive discussion on two of the most egregious errors in the rules with Rhonda Abban, the section chief in charge of adoption at ODJFS. Such a procedure letter might read as follows:

To: County Children Services Agencies, Private Child Placing Agencies, State Hearing Officers, the ODJFS Office of Legal Services and the Office of Child and Family Services.

This letter is to inform you that the federal Child Welfare Policy Manual is the authoritative source for the interpretation of federal Title IV-E Adoption Assistance and Foster Care Law. From the outset, the federal Children’s Bureau has relied on policy issuances rather than administrative regulations to administer the Title IV-E program. Around six years ago, the Children’s Bureau consolidated the policy issues into an online manual that is regularly updated. The Child Welfare Policy Manual, consequently, supersedes any rules in the Ohio Administrative Code, which may be inconsistent with its provisions.

Effectively immediately, the Child Welfare Policy Manual is to be consulted when any dispute arises over eligibility, benefit and procedural issues in the Title IV-E Adoption Assistance and Foster Care Maintenance Programs. County child welfare agencies are instructed to rely on its provisions in determining eligibility and benefits. Hearing officers and administrative reviewers are instructed to consult applicable sections of the Child Welfare Policy Manual in rendering hearing and appeal decisions. Ohio Adoption Assistance and Foster Care Maintenance rules will be reviewed and amended to conform to the Child Welfare Policy Manual

ODJFS has been out of compliance with its own IV-E State Plan for several years and such a letter would not only fix that problem, but curtail the denial of adoption assistance to eligible special needs children. Following the letter, the OAC adoption assistance rules could be reviewed on a priority basis. I would like to be part of that review. By taking these steps, the Strickland Administration and ODJFS can earn the gratitude of adoptive parents across the state.

State Adoption Assistance Rules Contrary to Federal Law

2008-01-02T13:47:00.000-05:00

Certain provisions in Ohio's Title IV-E Adoption Assistance rules are in conflict with federal law as interpreted by the federal Child Welfare Policy Manual. The Child Welfare Policy Manual conveys "mandatory policies that have their basis in Federal law and/or program regulations. It also provides interpretations of Federal statutes and program regulations initiated by inquiries from State Child Welfare agencies or ACF Regional Offices."

Unfortunately, the Ohio Department of Job and Family Services under the Taft Administration never communicated to county agencies, ODJFS hearing officers and ODJFS Legal Services staff that
applicable provisions in the Child Welfare Policy Manual supersede any contrary, inconsistent or incompatible provisions in the Ohio Administrative Code (OAC). As a result, eligible special needs children have been denied federal Title IV-E adoption assistance because county agencies and hearing officers have been trained to rely exclusively on state rules.

Ultimately, a systematic review and correction of errant state rules must take place, but such reviews are quite time consuming. We ask adoptive families and their supporters to contact ODJFS and request that the Director Helen Jones-Kelley issue a procedure letter intructing county agencies, hearing officers and ODJFS Legal Services staff to abide by the Child Welfare Policy Manual . Such a communication would not only correct a longstanding flaw in Ohio's adoption assistance policy, but prevent eligible special needs children from being denied federal adoption support. The Child Welfare Policy Manual could then be used as the basis for a thorough review of the revised 2007 OAC adoption assistance rules in OAC 5101:2-49.

Please contact Sandra Holt, Deputy Director, Family, Children and Adult Services through her Adminstrative Assistant Julia Bourdeau by e-mail at bourdj@odjfs.state.oh.us. Also contact the Office of ODJFS Director Helen Jones-Kelley by fax at Fax (614)466-2815.

The following is a possible draft you can use as an example.

The Ohio Department of Job and Family Services has never informed county agencies and hearing officers that the federal Child Welfare Policy Manual is the authoritative source for interpretation of Title IV-E adoption assistance law and supercedes any state regulations in the Ohio Adminstrative Code that are contrary to its provisions. Errors in current OAC adoption assistance rules are resulting in the denial of adoption assistance to special needs children that are clearly eligible under fedearlk law. [Add any personal problems you have exerienced or are aware of involving adoptive families].

To prevent further injustices and to bring Ohio into conformity with its own IV-E State Plan, we request that Director Helen Jones-Kelley correct the omissions of the Taft Administration and issue a procedure letter somewhat like the following.

To: County Children Services Agencies, Private Child Placing Agencies, State Hearing Officers, the ODJFS Office of Legal Services and the Office of Child and Family Services.

This letter is to inform you that the federal Child Welfare Policy Manual is the authoritative source for the interpretation of federal Title IV-E Adoption Assistance and Foster Care Law. From the outset, the federal Children’s Bureau has relied on policy issuances rather than administrative regulations to administer the Title IV-E program. Around six years ago, the Children’s Bureau consolidated the policy issues into an online manual that is regularly updated. The Child Welfare Policy Manual, consequently, supersedes any rules in the Ohio Administrative Code, which may be inconsistent with its provisions.

Effective immediately, the Child Welfare Policy Manual is to be consulted when any dispute arises over eligibility, benefit and procedural issues in the Title IV-E Adoption Assistance and Foster Care Maintenance Programs. County child welfare agencies are instructed to rely on its provisions in determining eligibility and benefits. Hearing officers and administrative reviewers are instructed to consult applicable sections of the Child Welfare Policy Manual in rendering hearing and appeal decisions. Ohio Adoption Assistance and Foster Care Maintenance rules will be reviewed and amended to conform to the Child Welfare Policy Manual. ODJFS has been out of compliance with its own IV-E State Plan for several years and such a letter would not only fix that problem, but curtail the denial of adoption assistance to eligible special needs children. Following the letter, the OAC adoption assistance rules could be reviewed on a priority basis.

Contact me by e-mail at tohanlon@columbus.rr.com with any questions, or by phone at 614-299-0177. In the coming days, I will publish detailed policy briefs on the state's failure to establsih the federal Child Welfare Manual as the authoritative source of federal adoption assistance law, as well as specific critiques of Ohio rules that are out of compliance with federal law.

State Increases Non-Federal Financial Participation in Federal Title IV-E Adoption Assistance and State Adoption Maintenance Subsidy Programs

2007-12-30T16:06:00.000-05:00

On December 18, 2007, the Ohio Department of Job and Family Services (ODJFS) issued Family and Children and Adult Services Procedure Letter (FCASPL) 129 (AA and SAMS), announcing an increase in the non federal portion of Title IV-E adoption assistance and state adoption subsidy maintenance payments. Beginning in January 2008, ODJFS will provide the non federal portion (about 40%) of federal Title IV-E adoption assistance payments up to $300 per month. Previously the state’s financial participation was limited to payments of $250 per month. This means that for every IV-E adoption assistance payment of $300 per month, federal financial participation will be approximately $180 and state financial participation about $120. As before, public county children services agencies are responsible for the non-federal portions of any amount of assistance over $300 per month.

In accordance with federal and state law, federal Title IV-E adoption assistance payments must be established through a written agreements negotiated between the adopting parents and the responsible county agency. Let us suppose the parents and agency arrive at an adoption assistance agreement of $1,000 per month. Under the revised 2008 funding, the fiscal responsibility would break down as follows:

Total Monthly Adoption Assistance Payment:$1,000	Federal Share	State Share	County Share
First $300	$180 (60%)	$120 (40%)	$0
Remaining $700	$420 (60%)	$0	$280 (40%)
Totals $1,000	$600 (60%)	$120 (12%)	$280 (28%)

The increase in state financial participation will apply to initial federal Title IV-E adoption assistance agreements negotiated after January 1, 2008. The measure will also apply to adoption assistance agreements that are amended after that date.

The State Adoption Maintenance Subsidy (SAMS) is a non- IV-E subsidy financed entirely without federal dollars. Beginning in January 2008, the state will pay up to $300 per month in state adoption subsidies, an increase from the previous maximum of $250 per month. The $300 amount is not automatic, but is to be determined through discussions between the adopting parents and the responsible county agency.