Monday, April 25, 2022

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.