Monday, April 25, 2022

Mediation: Request for Mediation

In the previous post, I suggested making a record to contrast your (the parents) attempts to negotiate adoption assistance in accordance with federal and state policy with the actions of the county agency.  If the agency recognizes the validity of your approach and engages in a genuine negotiation, great!  Most likely, the agency will not respond to your questions and statements in any reasonable fashion, or neglect to respond at all.

You might give the agency a couple of weeks to respond.  Depending on the nature of the response, or lack thereof, you might give negotiation one more try or request mediation.  You request mediation by completing the JFS 01470 form and submitting it by email to the ODJFS Bureau of State Hearings at BSH@jfs.ohio.gov.

In the space devoted to reasons, you can put something like: “the agency failed to negotiate my child’s Title IV-E Adoption Assistance Agreement in accordance with Federal and state law.  Specifically, . . . .”  Then, you can list areas of non-compliance such as:

·         Failure to negotiate at all. (Example).

·         Failure to consider family circumstances (Examples).

·         Failure to consider “anticipated” needs. (Example).

·         Insistence on an adoption assistance payment that is (half, less than half) of the foster care maintenance payment she receives as child determined by the agency to require a high level of care.  (Specific Example).

·         The agency has threatened to look for another family if we don’t reach an agreement.

If you need more space, put “See Attached” in the space on the form.

When you get a response from the Bureau of State Hearings.  The mediator will contact you and the agency to set up separate phone meetings without the other party present.  I suggest telling the mediator that you are going to submit a written statement, so you can have a more productive conversation with him or her.

In your e-mail message to mediator, I think it is important to communicate that

1.      You know that mediator will not determine the amount of adoption assistance.

2.      But, as a neutral third party, a kind of referee, the mediator apply federal and state criteria for negotiation in discussions with both the parents and county agency.

3.      You believe that the agency’s failure to comply with negotiation requirements is a major cause of the current impasse.

4.      By applying the federal and state requirements for negotiation, the mediator can establish a common framework for the parents and agency try and reach an adoption assistance agreement.

Example of an E-Mail Message to the Mediator Prior to the Initial Phone Conference

We recognize that as a neutral third policy you may not impose an agreement on either party.  Nevertheless, we regard your role as critical one in our mediation with         County.  We believe that the negotiation process is at an impasse because the agency does not recognize, much less comply with the requirements for negotiation established in federal and state law.  As an official with Ohio’s designated Title IV-E agency, you have the authority confirm state and federal policy for both contending parties.  While this does not guarantee an agreement with the agency, clarification of the rules and policies can move us past the current impasse and serve as framework for constructive dialogue. 

Throughout this frustrating process, we have presented information about how adjustments in our family circumstances affect our capacity to meet our child’s current and anticipated needs.  We presented this information as grounds for a higher, more adequate adoption assistance payment.  In refusing to consider an adequate adoption assistance payment, the agency either failed to respond or offered reasons that are not recognized in any federal or state regulation or policy.  Through mediation, the parties, at least, must confront the real expectations of the negotiation process, long established in law.

In preparation for our initial discussion, I am including a set of questions and statements we sent to the agency in an attempt to establish a common understanding of the negotiation process.  Unfortunately, the agency failed to respond in any helpful way.  [Explain how the agency did respond or fail to respond].  We hope it will convey the need for a third party to clarify the necessary elements of the negotiation process.

Note: Attach the statements and questions you e-mailed to the agency, which was discussed in the previous post.  In the initial phone conversation ask the mediator if she or he read it, whether it was accurate, and if you clearly conveyed the agency’s response or lack thereof.  Be prepared to cite needs and family circumstances that should have been considered but were not.  These become the major reasons why your child needs a higher rate of adoption assistance.  Finally, you might mention that if mediation fails and you are forced to go to a hearing, the likely outcome is an order to the agency to resume negotiations according to established policy.

Note: The mediator may expect a somewhat brief initial phone call.  Politely insist on giving the mediator a picture of the most important needs and family circumstances that have been ignored or rejected, the agency's noncompliance with the negotiation requirements and the importance of the mediator to confirm the negotiation requirements in speaking with the agency.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mediation: Making a Record Before Requesting Mediation

In the previous post, I suggested exploring mediation if your attempts to negotiate adoption assistance are going nowhere.  Mediation does not guarantee that the agency will agree to the monthly adoption assistance payment that your child needs, but it may be emerging as a framework for walking the county agencies the negotiation process.  Before requesting mediation, I suggest that parents create a written record to contrast their efforts to negotiate with those of the agency. 

E-Mail Message to the County Agency

The parents might start sending an e-mail message to the county agency stating that, before requesting mediation, they would like to make another attempt to negotiate an agreement.  They might say something like:

In order to arrive at a common framework for productive discussion, we are sending you our understanding of the process for negotiating adoption assistance.  Please read the attached statement carefully and inform us of any points of disagreement.  Please include the regulations or policies that support your position, so we can attempt to resolve any conflict that impedes an agreement for _________’s adoption assistance. 

We are both committed to providing a permanent, loving family for _________ and we hope this will help us to collaborate in her best interest.

Attachment

I suggest sending an attachment that states your understanding of what federal and state policy have to say about the negotiation process.  Here is an example.

Policies and Procedures for Negotiating Adoption Assistance

According to federal and state law, the negotiation of Title IV-E Adoption Assistance should involve a thorough consideration of the child’s needs and family circumstances.

 

What does it mean to consider the child's needs and the parents'/family's circumstances in negotiating an agreement for Title IV-E Adoption Assistance?  

Federal and state law have always required that the child’s needs and parent’s circumstances be considered in reaching an agreement for monthly adoption assistance.  Section 8.2D.4, Question 1 of the Child Welfare Policy Manual, stipulates, “the amount of the adoption assistance payment is  

determined through the discussion and negotiation process between the adoptive parents and a representative of the title IV-E 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.  (Emphasis added).

What can we conclude from the above quote?

a.   Adoption assistance is a supplement to be combined with the parent’s resources. As a supplement, adoption assistance is intended to become a part of the adoptive family’s overall budget.

b.  Incorporating and sustaining a child in a permanent family includes the challenge of meeting the child's “ordinary and special needs” and “anticipated” as well as current needs.  This guidance makes sense because it addresses the overall concerns of parents raising a child.  

c.  Adoption assistance is not intended to cover specified categories of expenses like other federal and state benefit programs.  Adoption assistance has a broader purpose.  What kind of supplemental support will enable you, to provide a family for this special needs child?  Addressing this question obviously includes consideration of the child’s ordinary daily needs.

What does consideration of the child’s needs and parent’s circumstances together mean? 

The discussion of a child’s ordinary and special needs takes us to the consideration of the parent’s (family’s) circumstances.  What does that mean?  Let us examine a second provision, appearing in Question 3 of Section 8.2.D.4 of the Child Welfare Policy Manual dealing the negotiation of adoption assistance

 Question 3 in Section 8.2D.4 the federal manual, emphasizes the inclusion of the adoptive parent’s (family’s) circumstances as part of the negotiation of an agreement for a monthly adoption assistance payment.  ”During the negotiation, of an adoption assistance agreement,

 it is important to keep in mind that the circumstances of the adopting parents and the needs of the child must be considered together. The overall ability of a singular family to incorporate an individual child into the household is the objective. Families with the same incomes or in similar circumstances will not necessarily agree on identical types or amounts of assistance. The uniqueness of each child/family situation may result in different amounts of payment. Consistency is not the goal. (Emphasis added).

Conclusions and Implications for Practice

Here are a few basic conclusions and implications for practice.

1.   The adoptive parents and public agency should negotiate with a common goal clearly in mind, namely, “The overall ability of a singular family to incorporate an individual child into the household.”  

2.   The circumstances of the specific family provides the context for discussion of how the ordinary and special needs of the child can be addressed. 

 

3.    It follows then, that the parent’s (family’s) circumstances include consideration of adjustments and sacrifices the parents make to incorporate and sustain a child in a nurturing family.  Some of the more obvious ones are:

 

·    Giving up work outside the home or reducing work hours in order to provide for a child’s extensive care needs.   Adoption assistance is limited to the child’s foster care maintenance payment rate and certainly cannot replace full time employment, but as a supplement it can enable an adoptive family to make the adjustments necessary to care for their special needs child.

 

·    In the case of a single adoptive parent, identifying and paying for child care, after school activities or summer programs that reflect he child’s specialized care needs, while parents works. 

4.   In negotiating adoption assistance, the parties must consider the child’s care needs through the lens of the parent’s particular circumstances.  Remember, the purpose of adoption assistance was and is to increase the pool of suitable parents by enabling adults from a range of economic conditions to provide permanent homes for special needs children.

 

 The Foster Care Payment and the Maximum Amount of Adoption Assistance

Does the Child’s foster care payment rate set the maximum for monthly adoption assistance? Does [Agency Name] Agree?  If not, what is the basis of the agency’s disagreement?

This last point is particularly applicable to Ohio, which has no uniform statewide foster care or adoption assistance payment rate schedules.  As we will explain, the “Maximum Statewide Adoption Assistance Payment” of $1,166 per month is not a statewide adoption assistance payment schedule in any normal sense of the term.  The child's foster care payment rate sets the maximum amount of monthly adoption assistance.

Is the foster care rate that sets the maximum adoption assistance payment always the payment the child received before adoption or does it become the foster care rate adopted child would receive if he or she were placed in foster care after the adoption?

Since a child’s needs and a family’s circumstances change over time, the maximum adoption assistance payment that can be re-negotiated is based upon the foster care payment that the child would receive were she placed in a foster home at the time a request for an amendment to the adoption assistance agreement is made.  OAC 5101:2-49-05 (E) states: “The maximum amount of the monthly AA payment shall not exceed the current cost of the monthly foster care maintenance (FCM) payment that was paid or would have been paid by the PCSA if the child had been placed in a foster home. “

From the beginning, federal and state law have allowed amendments to previous adoption assistance agreements based on changes in the child’s needs and/or family circumstances. OAC 5101:2-49-12 (B) spells this out.  If the maximum adoption assistance payment was not tied to the foster care rate the adopted child would have received were she placed in foster care, amending the adoption assistance agreement would be impossible in many instances.

Example: Suppose a child with modest special needs was receiving an adoption assistance payment of $400 per month.  Over the next three years, serious developmental problems emerged great increasing her level of care and causing her adopted mother to quit her job.  The child would receive a special foster care payment of $1,000 per month if she were placed in a foster home consistent with her care needs.  If the maximum amount of adoption assistance were tied to the prior foster care payment rate of $400 a month, negotiating an increase in adoption assistance would be impossible.

Grounds for a Higher Monthly Adoptive Assistance Payment than the Amount Proposed by [Agency Name].  Areas of Non-Compliance  

Because [Agency Name] did not comply with federal state requirements for negotiating an adoption assistance agreement for [child’s name], the amount proposed by the agency does not reflect her needs and our family circumstances.  We seek to re-open discussions with the agency, in accordance with the required policies and procedures set forth in federal and state law.   

NOTE: Customize the following examples to fit your individual situation.   Discuss those that apply.  Here is where you present the reasons why the agency’s proposal for adoption assistance does not meet the requirements for negotiation and as result does not reflect your child’s needs and family circumstances

[Agency Name] established a (specialized, therapeutic) foster care payment rate that reflected (child’s name) care needs.  The agency has proposed a monthly adoption assistance payment that does not reflect our child's care needs and necessary adjustments in our family circumstances to meet those needs.  The amount of adoption assistance proposed by the agency is (how far?) below _______'s foster care payment rate.  Yet, _______'s needs and adjustments in our family circumstances have not changed.  The agency has not provided an explanation for this enormous difference that is in line with federal or state policy.

[Agency Name] has failed to consider adjustments in our family circumstances we have made in order to meet (name) extensive care needs.  [Explain services, expenses designed to address specific provides, along with changes adjustments in family circumstances such as quitting a job, or extensive travel or child care.  The idea is to present the programs, services activities that you are providing or anticipate providing to address the child’s problems, along with the adjustments and sacrifices you make to meet the child’s care needs]. 

[Agency Name] has threatened to look for another family if we do not accept the amount of adoption assistance proposed by the agency.  Such action would not only violate the agency’s commitment to _________’s best interest, but would interfere with our rights to negotiate and appeal adverse decisions under the federal law pertaining to Title IV-E Adoption Assistance.

 

Next: The Agency’s Response and Request for Mediation

Mediation May Represent a Real Opportunity to Negotiation Title IV-E Adoption Assistance

 

Mediation may provide the first opportunity to actually engage county agencies in a negotiation of adoption assistance through the involvement of a neutral third party.  I have only participated in two recent mediations with two different mediators, so it is too early to draw any firm conclusions.  But, what I saw was promising.  The mediation process was established years ago as a step to see if a disagreement over monthly adoption assistance payments could be resolved prior to a state administrative hearing.  If a mediation fails, parents still have the option of requesting a hearing.  Here are a few things I observed.

 

Both mediators were familiar with the relevant sections of the federal Child Welfare Policy Manual and accepted the policy and procedures for negotiating adoption assistance in the manual as authoritative interpretations of federal law. This represents a major change from the early mediations, where the adoptive parents and their advocates struggled to establish the Child Welfare Manual as the primary guide for conducting negotiations.

 

As neutral parties, ODJFS state mediators refuse to make decisions about what the final adoption assistance payment should be.  On the other hand, there is nothing to prevent a mediator from confirming the requirements for negotiation as set forth in federal and state policy. This is significant because county agencies routinely fail to comply with those basic requirements in response to parents' attempts to negotiate adoption assistance payments.  Agencies, for example, frequently do not engage the parents in a comprehensive discussion of their child’s current and anticipated “needs” (not just special needs) in light of the adoptive parents’ overall circumstances.  Many agencies, disregard the most important adjustments that affect the parents’ capacity to meet all their child’s needs, insisting that adoption assistance is limited to certain kinds of services and expenditures, which it is not.

 

At first glance, the revised mediation process appears to give parents the opportunity to present their situation and reasons for seeking a particular level of adoption assistance with federal and state policy serving as the rules for conducting the mediation and the mediator acting as referee.  The establishment of a common framework for conducting a mediation, of course, does not guarantee that the agency will agree to a reasonable amount of adoption assistance.  But, confirmation of negotiation requirements by a third party official from the state agency responsible for the IV-E Adoption Assistance program can make a difference.  At the very least, it can expose the phony obstacles county agencies throw up in response to parents’ attempts to secure a reasonable amount of adoption assistance.  Here are a few types of cliche responses, parents receive from agencoes.

 

“This is the rate of adoption assistance we approve.  We don’t pay more than that.” [No discussion.  No Negotiation based on the individual child’s needs and family circumstances].  

“Send us a dollar amount and I will take it to our committee and see what they decide.” [Approval process, not a negotiation based on consideration of the individual child’s needs and family circumstances].

 “We can’t consider a higher level of adoption assistance just because you quit your job to meet your child’s care needs.”  [Failure to consider most significant adjustments in family circumstances].

“We can’t agree to adoption assistance that matches the child’s foster care payments.  When you adopt, you are responsible for the child’s care.”  [No reasons given.  How is this determination a reflection of the individual child’s needs and family circumstances.  The federal share of adoption assistance is available up to the foster care payment].

“Adoption Assistance doesn’t cover child care.”  [There are no “unacceptable uses for adoption assistance in law. Adoption assistance is a supplemental source of support to be combined with the parent’s resources.  Help with child care costs may the most crucial circumstance, especially in a single parent adoption].

“If we can’t reach and agreement, we will have to look for other families.” [Reprehensible intimidation tactic.  Violation of parents’ due process rights under the adoption assistance program.  Betrayal of agency’s commitment to best interest of the child].

 

Mediation conducted with federal and state policy functioning as the guidelines and the mediator as the referee can at least force the county to respond to those and other false claims that prevented any real negotiation.  In cases where the parents have gotten nowhere, mediation may offer the best chance of engaging in legitimate negotiation.  It seems to be worth a try before proceeding with an appeal hearing.     

 

Next: Before requesting a mediation, I suggest you consider a few actions which I will discuss in the next post.