Adoption Assistance Payments May Not Exceed the Child's Foster Care Payment Rate. What Does This Mean?

What is the Applicable Foster Care Payment Rate During the Negotiation of an Increase in Adoption Assistance?

Federal dollars are available to fund Title IV-E Adoption Assistance Agreements calling for payments at or below the child’s foster care payment rate. It is helpful from time to time to explain what this means. Hopefully, the following scenario will help.

Scenario

Foster parents adopt their foster child at the age of 3. The county agency made monthly foster care payments of $500 prior to the completion of an adoption assistance agreement for $450 per month.

Serious developmental, behavioral and learning issues emerge after the child starts attending school. The parents request an amendment to the child’s adoption assistance agreement and present information from educators and therapists in support. As negotiations begin, the parents are seeking an increase in adoption assistance to $1,000 a month. Though privately, they are willing to settle for an increase in the $800 to $850 range.

The agency proposes and increased adoption assistance payment of $500, explaining that it cannot go higher because IV-E Adoption Assistance may not exceed the child’s foster care payment rate. Is the agency correct?

Response

No. The applicable foster care payment rate is the payment the child would receive were he or she placed in a foster home at the time the parents request an amendment to the adoption assistance agreement. Paragraph (E) of Ohio Administrative Code (OAC) rule 5101:2-49-05 was amended years ago to clarify this very point. It states,

(E) 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.

I have had discussions with state mediators and they clearly agree with this policy interpretation.

The Opportunity to Amend an Existing Adoption Assistance Agreement

Federal law anticipated that a child’s needs and adoptive family’s circumstances might change over time. Since adoption assistance was designed to help sustain permanent families for special needs children, the law provided for the amendment of existing adoption assistance agreements. Here is the original language, which has not changed.

The amount of the payments to be made in any case under clauses (i) and (ii) of paragraph (1)(B) shall be determined through agreement between the adoptive parents and the State or local agency administering the program under this section, which shall take into consideration the circumstances of the adopting parents and the needs of the child being adopted, and may be readjusted periodically, with the concurrence of the adopting parents (which may be specified in the adoption assistance agreement), depending upon changes in such circumstances. 42 U.S.C. 673 (a)(3)

If the adopted child and family were locked into the child’s preadoptive foster care payment rate, the provisions cited in the paragraph above would be of limited use. The capacity to respond to changes in an adoptive family’s needs would be severely circumscribed. The opportunity to negotiate an amendment to the existing adoption assistance agreement would be rather meaningless. That was clearly not the intent of the federal law.

Maximum Adoption Assistance Payments

Federal adoption assistance law sets the maximum in federal funding for adoption assistance at the child’ foster care payment rate. The state and Ohio County agencies could agree to adoption assistance payments that exceed the child’s foster care payments if they chose to do so and were willing to cover 100% of the additional support. Because state and local agencies rarely choose to do so, the child’s foster care payment rate functions as a de facto ceiling on adoption assistance payments, not just the federal portion. But, once again, if the child is not receiving foster care payments, the foster care payment the child “would receive,” sets the de facto maximum on the size of the adoption assistance payment.

Suggestion to Adoptive Parents

At this point, we have the federal and state requirement to employ a foster care payment rate the child would receive if he or she had been placed in an appropriate foster home. This interpretation is well established. On the other hand, the state has no regular procedure in place to determine what that foster care payment rate might be.

There is a need for the Ohio Department of Job and Family Services (ODJFS) to develop guidance on this issue. In the absence of clear standards, adoptive parents can proceed based on the best information available to them. Ultimately, the burden will fall on the county agency verify any claim that a proposed increase in adoption assistance must be denied because it would exceed the foster care payment the child would receive if he or she were placed in a foster home. Therefore, in the absence of evidence to the contrary, parents can focus their attention on negotiating an increase in adoption assistance based on changes in their child’s care needs and their family circumstances.