Hearings Are Ineffective In Resolving the Disputes Over the Amount of Adoption Assistance
Another Update on When to File a Complaint with the
In a previous post, I suggested trying mediation before contacting the Ohio Youth and Family Ombudsmen Office. Here is some further clarification.
If the agency states or even implies it will search for another family if you don’t accept the agency’s proposal for adoption assistance, contact the Ombudsmen right away.
If you have attempted to negotiate in accordance with federal and state requirements, but the agency refuses to engage your concerns or give sufficient consideration to your child’s needs and family circumstances as discussed in the federal Child Welfare Policy Manual, you can request mediation or call the Ombudsmen and see what steps it suggests. Going to mediation first, does not preclude the opportunity to file an Ombudsmen complaint if the mediation fails because the county agency refuses to abide by federal and state negotiation requirements.
At this point, for reasons below, I would try mediation and an Ombudsmen complaint before requesting a hearing. If you are facing a deadline for requesting a hearing, you can request one and continue to work with the Office of Ombudsmen.
Please spread the word and share your experiences with me and with other families as described in previous posts on “Mediation” and the “Youth and Family Ombudsmen.”
State Hearing Decisions on the Amount of Adoption Assistance Are Not Enforced
Federal and state laws guarantee, adoptive parents to right to appeal agency decisions. Unfortunately, Ohio state administrative hearings do not offer an effective means of resolving disputes between county agencies and parents involving the amount of monthly Title IV-E Adoption Assistance payments. Such hearings only consider whether the agency has negotiated in accordance federal and state requirements. If not, the hearing officer orders to agency to resume negotiations and to consider family circumstances, certain childcare needs or whatever situations the agency failed to consider prior to the hearing. Hearing officers almost never conclude that the amount of adoption assistance proposed by the agency is insufficient, considering the child’s needs, the family’s overall circumstances or the enormous gap between the proposed adoption assistance and the child’s foster care payments. They never impose a minimum adoption assistance payments.
Agencies have discovered that they can resist, or just ignore, orders to negotiate adoption assistance because the Bureau of State Hearings in Ohio Department of Job and Family Services will not enforce hearing decisions. A few years ago, when I tried to register a complaint about an agency’s continuing defiance of a hearing order to engage in a real negotiation with the adoptive parents, I was told there was nothing the Bureau of State Hearings could do about it. The Bureau of State Hearings has apparently concluded that it did not have the authority to enforce orders to negotiate.
All Aboard the Hearing Merry Go Round
Parents who “win” a hearing still face the possibility of a monthly adoption assistance payment that may be over $1,000 less than their child’s foster payments. If they contact the Bureau of State hearings, they learn their only option is: guess what? Yes, you guessed it, request a hearing!! If the parents hold on, fearful that if they accept the agency’s proposal, their child’s care needs will be in jeopardy, the adoption may be delayed for up to a year or more. At some point, during this long, anxious delay, the agency may start raising the possibility of looking for another family.
Ohio’s Hearing System Applies to “Fixed Benefit” Programs, Not Adoption Assistance Agreements
Multiple factors have contributed to this breakdown in the state’s hearing system for adoption assistance. Hearing rights for applicants and participants in federal entitlement programs were established in 1970 by the United States Supreme Court in the case of Goldberg v. Kelly, 397 U.S. 254 (1970). The decision granted appeal rights to applicants and recipients of AFDC benefits and by extension to other federal benefit programs. AFDC (now TANF), food stamps now (SNAP) and other federally funded services are “fixed benefit” programs in which eligibility confers a defined amount of assistance based on family income and size. In short, if you are eligible, you get the benefit.
Although there are basic federal requirements, states have some latitude to tailor their own programs. Individual state administrative codes contained federal regulations, along with those that were specific to the individual state. Understandably, when Ohio set up its appeal process through the Bureau of State Hearings, its hearing officers were instructed to rely exclusively on the Ohio Administrative Code (OAC) to render their decisions.
Adoptive parents did not start using the hearing system in Ohio until the early 1990’s. But adoption assistance is not a fixed benefit program. Once a child is found eligible, the amount of adoption assistance agreement is negotiated by the agency and the parents of the eligible child. Distinct from other programs, the federal Children’s Bureau has Administered the Title IV-E Adoption Assistance program through various policy and program “Issuances,” which they eventually consolidated into the online Child Welfare Policy Manual.
Ohio’s hearing system works pretty well for adoption subsidy eligibility appeals, but consistent with their training, state hearing officers still do not recognize the requirements in the Child Welfare Policy Manual, even though the Ohio Department of Job and Family Services (ODJFS) agrees to abide by “federal policy issuances” in its IV-E State Plan, as a condition for federal funding. The Child Welfare Policy Manual provides more detailed guidance on negotiation than state rules in the OAC.
For some reason, instead of essentially replicating or closely paraphrasing the language on negotiation in the “Rates” section of the Child Welfare Policy Manual”, like a number of other states, state rule makers have resorted to a more “creative” approach. The language on negotiation resembles the language in the federal manual, but it is less detailed and harder to understand. And, of course, state hearing officers rely on the more limited language in the OAC. Mediators, in the same Bureau of State Hearings, as discussed in the previous post, now embrace the Child Welfare Policy Manual as the rulebook for walking agencies and parents through the mediation process in hopes of arriving at agreements on monthly adoption assistance payments. Thus, two entities in the Bureau of State Hearings, hearing officers and mediators, focus on somewhat different negotiation requirements. Who’s on first?
The State’s Role Is Not Clearly Defined in a County Administered Child Welfare System
Ohio’s county administered child welfare system exacerbates the difficulty of reaching fair and sufficient agreements for IV-E Adoption Assistance. Ohio has no statewide foster care or adoption assistance payment rate schedules based on the child’s level of care. Therefore, in policy terms, each adoption assistance agreement involves a negotiation between an agency and a parent or parents based on the child’s specific needs and the particular circumstances of the adoptive family. Because the child’s foster care payment rate acts as a de facto ceiling on adoption assistance payments and foster care rates differ widely from county to county, there is comparable variation in adoption assistance.
But, besides the inability of the hearing system to deal with the unique aspects of the adoption assistance program and the inconsistency in levels of support, Ohio’s county administered system poses an even more fundamental problem. Federal requirements for negotiating adoption assistance clash with the Ohio’s method of funding adoption assistance. This problem is very important, but mind numbing. Let me see if I can explain.
Like other entitlement programs, federal funding of adoption assistance and foster care maintenance requires non-federal matching funds. Currently federal dollars cover 64% of all IV-E Foster Care Maintenance and Adoption Assistance payments in Ohio. Ohio county agencies, as noted in a recent post, must provide the entire non-federal portion of foster care payments. A previous post also discussed the decline in IV-E eligible foster children and the resulting squeeze on county agency budgets.
The non-federal portion of IV-E Adoption Assistance started out life as the state’s responsibility. But, by the mid 1980’s, the state had determined it would only provide the non-federal portion of adoption assistance for payments at or below $250 per month (less than $100 per payment). Adoption subsidy payments were effectively frozen at $250 and the gap between adoption assistance and foster care support increased.
In the early 1990’s, the OAC was amended to authorize county agencies to provide the non-federal portion of adoption assistance up to the child’s foster care payment rate. And that is where things stand today. State financial participation is still limited to the non-federal portion of adoption assistance payments that are $250 or less.
You Can Appeal. But We Will Not Enforce the Decision If You Win, Only If You Lose
This sort of jerry-rigged funding exacerbated the problem of inconsistent and insufficient adoption assistance agreements. On one hand, federal law requires adoption assistance to be negotiated. On the other hand, Ohio county agencies are authorized, but not required to agree to adoption assistance that matches the child’s foster care payment rate. Given the stress of falling IV-E foster care eligibility rates and the state’s chronically low financial participation in adoption assistance, the county agencies are inclined to propose adoption assistance rates that are well below a child’s foster payments.
Federal and state law, however, does require county agencies to engage the parents in negotiations of adoption assistance based on a broad consideration of the child’s needs and the family’s circumstances. If county agencies are not literally required to match the individual child’s foster care payments, what are they required to do. Are there at least minimum requirements for adoption assistance agreements given the child’s needs and the adoptive family’s actual circumstances. The state and the hearing system have no answers for that question.
Once again, the state has the authority to establish and interpret federal and state policy regarding the negotiation of adoption assistance agreements, but no reliable procedures to enforce it, especially through the state administrative hearing process. Hearing officers have the authority to determine that a county agency has failed to comply with those federal and state requirements and to order the county to resume negotiations. In most cases, if county agencies actually committed to adoption assistance agreements that reflected the child’s needs in light of the family’s circumstances, they would not propose adoption subsidies that were half of the child’s foster care payment half the child’s foster care payments.
But, agencies know there are no real consequences for passive resistance or outright defiance when they are ordered to re-negotiate. When push comes to shove, the county may argue that the state has not authority to impose a particular outlay of county funds for adoption assistance. The Bureau of State Hearings apparently agrees.
By engaging the parties in a dialogue and walking them through a negotiation, mediation appears to improve outcomes for adoptive parents and their children. Third party mediation exerts some pressure on the agency and parents to compromise. State hearing decisions, by contrast, are not issued until some weeks after the hearing is conducted and the hearing officer has little or no further contact with the county agency.
But mediation is not a solution for defects in the hearing system. Mediators cannot impose a fairer adoption assistance agreement when a compromise still leaves the child with inadequate support or when the agency refuses to budge altogether. We will consider some proposals for more equitable negotiation requirements that narrow the large gaps between foster care payments and adoption assistance at a later date. Right now, even though adoptive parents have the right to appeal county agencies’ decisions, the state has never established its role in resolving disputes when the parties are hopelessly deadlocked or the agency insists on an adoption assistance payment that is clearly deficient in terms of federal policy.
Should I Even Request a Hearing?
Sometimes hearings are successful. Because of all the problems, however, I would try mediation and/or a complaint to the Youth and Family Ombudsmen first. Keep your eye on any deadlines to request a hearing.