Proposed Rule Changes to Prevent Dramatic Reductions in Adoption Assistance

Proposal to Amend OAC Rule 5101:2-49-05

Note: Underlined portions denote new proposed language. Strikethroughs indicate deletion of current language.

Proposed Amended Language

(A) The amount of the Title IV-E adoption assistance (AA) payment is determined by negotiation and mutual agreement between the adoptive parent(s) and the public children services agency (PCSA).  Negotiations shall be based on the needs of the child and the circumstances of the adoptive family.   Amendments to existing adoption assistance agreements as described in OAC 5101:2-49-12, shall follow the same negotiation process and the same negotiation criteria as the initial adoption assistance agreement.

(D) The maximum amount of the AA payment eligible for federal financial participation (FFP) shall not exceed the cost of the foster care maintenance (FCM) payment which was paid or would be paid if the child for whom the AA payment is made is was placed in a foster home suitable to the child's level of care as provided in paragraph (E). 

(E) To determine the amount the FCM payment would have been if the child had been placed in a foster home operated by the PCSA, the PCSA shall:

(1) Determine the monthly foster care board rate in effect for a the foster home the in which the child was placed or would be placed of  by the PCSA completing the AA agreement at the time the most current agreement or modification/amendment to an existing agreement is signed being negotiated and completed.

Reason: Dan Shook of ODJFS has stated his opinion that no adoption assistance payment may exceed the payment rate of a "county agency" foster home. To avoid dramatic reductions in future adoption assistance payments support this rule change.

What's Wrong with Adoption Assistance in Ohio?; Part 2 of a Series

Adoption Assistance is Mismanaged Because ODJFS Does Not Recognize Its Unique Features

The Ohio Department of Job and Family Services (ODJFS) does not recognize that Title IV-E adoption assistance differs from other federal entitlement programs in several important respects.

1. Eligibility for adoption assistance and determination of the amount of assistance are two related but distinct steps.

2. Once a child is determined eligible for the program; federal law provides that the amount of adoption assistance must be determined through negotiation, based upon a broad consideration of the child’s needs and circumstances of the adopting family. Federal financial participation (FFP) in adoption assistance is available up to the level a child would receive in a foster home suitable to their level of care. Negotiation of adoption assistance payments may involve disagreements between parents and agency representatives involving several hundreds of dollars per month.

Failure to create the procedure and practices for the above differences is a key to understanding the deficiencies in ODJFS's administration of adoption assistance.

In most federal assistance programs, benefits are determined at eligibility by applying an income means test based on family size and income. Negotiating with families, accordingly, is beyond the experience of most agency officials. ODJFS' attempt the administer the Title IV-E adoption assistance program with the same structures and procedures as means tested programs has far reaching consequences.

No Development or Dissemination of a Coherent Model for Negotiation of Adoption Assistance Agreements

ODJFS has not developed a coherent model for negotiating adoption assistance agreements. As a consequence, many county agencies do not negotiate adoption assistance agreements in accordance with state and federal law. ODJFS officials are aware of this problem, but have not provided training to county agencies and taken any positive steps to establish, a coherent and consistent model of negotiation.

Consequences include: Bitter conflicts between adoptive parents and county agencies over the issue of negotiating adoption assistance agreement, resulting in numerous, complex state administrative hearings. Frequent threats to remove the child or children from the adoptive parents if they persist in attempting to exercise their due process rights.

Inadequate Preparation of Hearing Officers

ODJFS' hearing officers do not receive training regarding the differences and greater complexities of the adoption assistance program. Hearing officers are trained to examine the literal language of the Ohio Administrative Code. This training works well when determining eligibility for a means tested program based on income, resources and family size. It does not prepare hearing officers for the complexities of adoption assistance, which relies on guidelines. procedures and criteria for negotiating adoption assistance. Hearing officers are also not trained to look to the federal Child Welfare Policy Manual, for the authoritative interpretations of OAC adoption assistance regulations, even though ODJFS pledges to do so in its IV-E State Plan as a condition for receiving federal funds.

Consequences include: Uninformed and inconsistent hearing decisions. ODJFS has been approached about training a group of hearing officers to specialize in adoption assistance cases, but nothing has been done.

No State Oversight of County Agencies' Compliance with Hearing Decisions

Unlike other states, Ohio does have any statewide adoption assistance payment rate schedules. Each adoption assistance negotiation is to a great extent an individual transaction between the adoptive parents and county agency. Adoptive parents have been quite successful in winning hearings involving the county agency's failure to negotiate adoption assistance agreements according to federal and state policy standards. Because Ohio has no statewide adoption assistance payment standards, however, the hearing order in nearly every case, order the county agency to resume negotiations with the adoptive parents. ODJFS has no procedures in place for assuring county compliance and that a good faith negotiation takes place. ODJFS has no procedures for ensuring that settlements are reached.

Consequences include: County agencies resort to a variety of delaying tactics because they know that there are no negative consequences. Cases drag on for months without resolution. At times, they drag on for so long that a second hearing is held. One case is now over six years old. As months go by, county agencies will sometimes threaten to remove the children, blaming the parents for the delay and accusing them of not being committed to the adoption. Suggestions for third party arbitration or some other form of intervention have been made to ODJFS, but this option has not been explored.

No Policy Expertise in Adoptive Assistance at ODJFS

As adoptive parents have become more informed advocates, various policy and practice issues have surfaced. Adoptive parents cannot contact anyone at ODJFS that can provide answers to policy questions and the standards for verifying or documenting whether a requirement has been met. Policy analysis involves more that reading the literal language in a paragraph of the OAC. Administering adoption assistance policy involves an institutional memory of how rules have been interpreted, changes in federal interpretations and consistent applications of how compliance with existing policies is determined. At this time, ODJFS is sadly lacking in such expertise, which does nothing to remedy to inconsistent and poorly informed administration of the adoption assistance program across Ohio counties.

What's Wrong with Adoption Assistance in Ohio?; The First in a Series

Through the advocacy of adoptive parents, significant improvements have been made in the federal Title IV-E Adoption Assistance program over the past two decades. Not surprisingly, the advocacy of better informed adoptive parents has exposed severe weaknesses in the operation of the adoption assistance program. The forthcoming series of blogs will profile some of the major problems and urge adoptive parents to contact administrators at the Ohio Department of Job and Family Services (ODJFS), legislators and the Governor's Office. Serious defects include:

• Inconsistent hearing decisions. Adoptive assistance is different and far more complicated that other assistance programs administered by ODJFS. Adoption assistance hearings account for a very small proportion of all hearings in any given month. A number of hearing officers have very little knowledge of adoption assistance and their ignorance of the program is clearly revealed in their hearing decisions. The source of the problems is not so much the individual hearing officers as the complete lack of training provided on the complexities of adoption assistance and how to address them.
  

• A large number of county agencies do not comply with federal and state criteria and procedures for the negotiation of adoption assistance agreements. Adoptive parents, are routinely and incorrectly told, for example, that adoption assistance is limited to costs associated with the treatment of a child's special needs. Expenses associated with the activities and function of families in general are not considered. This view is completely at odds with current state and federal policy and is major source of conflict between adoptive parents and agencies.

• Adoption parents frequently prevail in hearing decisions pertaining to negotiation. The hearing decision orders the county agency to negotiate and sometimes sets conditions. At this point, the parents often face a combination of passive resistance, active resistance, delays, obfuscation that stretches out the process for months. In several cases, a second hearing on the same issue is necessary. ODJFS is aware of this problem of cases dragging on and on, but has developed no ideas for resolving negotiations. Oh, I neglected to mention that during these interminable cases, adoptions are also delayed. Parents are typically blamed for the delays in finalizing the adoption.
  

• There is a lack of experience in adoption assistance at ODJFS. Administering a program involves much more than looking at isolated phrases in state rules. One must have a knowledge of the program's history, and its goals. In addition to knowing how policy issues have been interpreted, one has to know how compliance with eligibility requirements and other rules are documented or verified. At present, there is no consistent guidance on how policy issues must be implemented or documented. The ADC-Relatedness requirement for Title IV-E adoption assistance eligibility is a prime example.

We will examine these problems in greater detail in forthcoming blogs. One point has become abundantly clear. Parents called to adopt special needs children are taken for granted in Ohio. Most special needs children are adopted by their foster parents. Once an emotional bond is established, these foster parents become completely committed to the children. Unfortunately, county agencies take full advantage of this bond and use it to push for minimal amounts of adoption assistance. Throughout the process, the parents' advocacy is demeaned and the needs of the children minimized. ODJFS becomes complicit through the failure to provide effective training guidance and oversight.

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

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

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

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

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.