Administrative Hearing Decisions

In Re: Docket No.: 07­1999­A­1737

MARI S. BELL APPELLANT.

INITIAL DECISION

Nan Thomas, Administrative Law Judge, conducted an administrative hearing on October 29, 1999, on this matter. The Appellant, Mari Susan Bell, appeared and was represented by Timothy O'Hanlon. Shirley Gantzer, Program Manager for Adoption Support Services, represented the Department of Social and Health Service's Division of Children and Family Services. The record was held open by order until November 19, 1999, for the submission of documents. At the request of the parties, an order was issued to extend the date to send in documents to November 29,1999. The case was continued until January 4, 1999. Further testimony was received on January 4, 2000 to re­record some testimony of the Appellant, which had not been properly recorded during the previous hearing.

ISSUES

1) Is the Appellant eligible to receive $142.20 per month for her child's special needs to supplement the agreed amount of $444.29 per month in adoption assistance [1] for Tamiko Scott Bell, effective October 1, 1997?

2) Is Tamiko eligible to receive adoption assistance from March 3, 1988, the date his adoption was finalized, or only from the date of his mother's application in 1997?

3) If retroactive adoption assistance back to the date of adoption is appropriate, then how should the amount of such payment be determined?

RESULT

(1) Because of Tamiko's disabilities, the parties agree that Tamiko's adoptive mother is eligible to receive $142.20 per month to supplement the agreed amount of $444.29 per month in adoption assistance, effective October 1, 1997. On December 9, 1999, an Order on Partial Settlement Regarding Adoption Support Program Eligibility was signed by the Department representative, Shirley Gantzer, and by Mari Susan Bell providing for such payments. Nonrecurring adoption assistance of a one­time payment of $289 was also agreed to between the Appellant and the Department.

(2) The Appellant is eligible for adoption assistance from March 3, 1988, the date Tamiko's adoption was finalized.

(3) This matter is ORDERED REMANDED to the Department to establish the appropriate amount of payment for adoption assistance for the period from March 3, 1988, to October 1, 1997.

HISTORY OF THE CASE

Mari Susan Bell adopted Tamiko Scott Bell when he was 21/2 years old. She applied for adoption assistance on his behalf when he was 12 years old, based on the facts that he was a special needs child and that she had never been informed about the availability of adoption assistance. The Department agreed that Tamiko is a "special needs" child who is eligible for adoption assistance and that the Department failed to inform Ms. Bell about the availability of adoption assistance for Tamiko. Prior to the hearing, the Department offered $444.29 per month in adoption assistance for Tamiko, beginning on October 1, 1997. However, during the hearing on this matter, the parties agreed that effective October 1, 1997, Ms. Bell is eligible to receive for Tamiko both $444.29 in adoption assistance per month and an additional $142.20 per month because of his disabilities. Therefore, at the conclusion of the hearing, the only issues remaining contested were whether Ms. Bell is eligible to receive adoption assistance for Tamiko back to when his adoption was finalized and the amount of such payments.

FINDINGS OF FACT

1) Mari Susan Bell is the adoptive mother of Tamiko Scott Bell. Her family consists of herself and three children. She is raising Tamiko (age t4), Nicholas (age 13), and Benjamin (age 12). Benjamin is disabled with bipolar disorder and receives Supplemental Security Income (SSI).

2) Tamiko was born on September 3, 1985. His birth mother was 15 years old. Tamiko's birth was six weeks premature and complicated by breach positioning which necessitated an emergency cesarian delivery. Testing has indicated that it is likely that he experienced some level of oxygen deprivation during his birth. Tamiko is of African American and Native American heritage.

3) At two months of age, weighing 8 pounds and suffering from an immature esophagus which caused a need to be helped with every swallow in order to be fed, Tamiko was removed by the Department from his birth mother's custody because of her inability to care for him.

4) The State first placed Tamiko in a receiving home and then in foster care. At eight months of age, Tamiko was moved from one foster home to another. As Tamiko's maternal grandmother, Mari Susan Bell visited him often and was concerned about the conditions of his foster care, finding him always in bed and left alone in an unfinished basement with a curtain around his crib.

5) On April 20, 1987, at almost 20 months old, Tamiko was placed with Ms. Bell. The Department of Social and Health Services (Department) notified Ms. Bell that Tamiko's birth mother's rights would be terminated, and Ms. Bell expressed an interest in becoming his legal parent.

6) Ms. Bell worked with a committee from the Department in planning for Tamiko's adoption. Members of that committee indicated that she would not be allowed to adopt Tamiko unless she agreed to stay home with him because he was a detached child (suffering from detachment disorder), possibly autistic, and it would be a challenge to establish an attachment with him. DSHS committee members encouraged Ms. Bell to give up her employment to stay home with Tamiko because of his special needs and to seek public assistance as a means of support for herself and Tamiko. Ms. Bell agreed to do so. Ms. Bell was then, and is now, single.

7) Before she adopted Tamiko, Ms. Bell was an engineer with the Bechtel Company. She gave up $28,000 per year 12 years ago in order to be able to stay at home with Tamiko and meet the conditions of his adoption.

8) Ms. Bell has been receiving Aid to Families with Dependent Children and later Temporary Assistance for Needy Families since the time of Tamiko's adoption. Both programs provide for medical coverage.

9) Because of his early neglect, Tamiko suffered from attachment disorder. As Ms. Bell and her representative Tim O'Hanlon [2] credibly testified, attachment disorder is often a lifelong, chronic problem with Catastrophic consequences, such as sociopathic behavior, if the problem is not addressed.

10) Before the adoption, Tamiko was physically unstable and suffered from gross and fine motor skill delays, such as not speaking at 19 months old.

11) On March 23, 1987, when Tamiko was 18 months old, the Bayley Scales of Infant Development were administered to Tamiko as part of Ms. Bell's adoptive home study. Tamiko obtained a mental development index of 78, based on an average of 100, and a standard deviation of 15, reflective of borderline functioning. Tamiko's fine motor and language skills appeared to be his weakest areas. An auditory inattention or lowering of auditory acuity was noted, and an audiological evaluation was recommended. See Appellant's Exhibit #A & #C.

12) On March 3, 1988, Ms. Bell's adoption of Tamiko was finalized.

13) Tamiko performed very poorly in school and was placed in special education by the second grade. Ms. Bell tried unsuccessfully for six years to convince the school district that Tamiko suffered from serious learning disabilities which caused his significant academic delays. She attempted for over six years to convince the school district to pay for neuropsychological testing to determine the cause of Tamiko's significant learning delays. Such testing was unavailable to her through community resources or through Medicaid and she was unable to afford to pay for it. Not until 1999 did the school district agree to pay for such testing for Tamiko. The results of that testing are discussed below. Ms. Bell credibly testified that if adoption support had been available when Tamiko was younger, she would have addressed his learning problems earlier. Ms. Bell vigilantly explored ommunity and school resources available to Tamiko. Had adoption assistance been in place for Tamiko, it is most probable that his academic delays would have been mitigated by evaluation and special tutoring.

14) On July 9, 1999, when Tamiko was 13 years old, a neuropsychological evaluation was conducted by Dr. Robert Butler which indicated that Tamiko had been a "stressed baby" for the first four years of his life, and had suffered from respiratory problems and considerable chest congestion. During his development, he had hearing problems and suffered from developmental delays, such as not walking until 17 months of age and delayed language development. More current observations include the facts that: Tamiko has had difficulty with reading and language skills, receiving special education services since the second grade; that his grade point average has ranged from 1.9 to 2.5; and that he has been diagnosed as having an adjustment disorder with mixed disturbance of mood and conduct. See Appellant's Exhibit #C.

15) In 1999, several tests were administered to Tamiko as part of his neuropsychological evaluation. The test results revealed the following: a significant discrepancy between verbal and performance abilities; an impaired working memory; attentional difficulties under conditions of vigilance; language dysfunction involving both encoding/acquisition and retrieval problems. At the age of 13, Tamiko's academic achievement measures placed him at the second to third grade level. See Appellant's Exhibit #C.

16) The clinical psychologist noted in the 1999 report that the most reasonable explanation for Tamiko's impairments would be his difficult birth, prematurity, and perhaps some anoxia. [3] He recommended cognitive remediation directed towards improving his working memory skills, memory encoding and retrieval abilities, and his ability to maintain a focus of attention over time. He explained that this therapy should include a cognitive­behavioral intervention designed to improve his problem­solving abilities. The psychologist also recommended that Tamiko receive a speech and language evaluation with treatment as indicated, stimulant medication for Tamiko's attentional functioning, and psychological counseling. See Appellant's Exhibit #C.

17) The Department agrees with the Appellant that Tamiko had special needs prior to the finalization of adoption and would have been eligible for adoption assistance had the Appellant applied for the program.

18) The Department agrees that extenuating circumstances existed to prevent the Appellant from entering into an adoption assistance agreement with the Department prior to the finalization of adoption. Specifically, the Department agrees that its representatives failed to inform Ms. Bell about the availability of adoption assistance for Tamiko.

19) It is the position of the Department that adoption assistance should only be granted from the date of Tamiko's mother's application forward, but not back to the date that he was adopted. According to Exhibit 2, the date of the Appellant's application for adoption assistance was November 1, 1997. However, Ms. Gantzer indicated in her testimony that because a conversation regarding adoption assistance occurred before that date, the Department agreed to pay adoption assistance back to October 1, 1997.

20) At the hearing on this matter, the parties agreed that effective October 1, 1997, Ms. Bell is eligible to receive for Tamiko both $444.29 per month in adoption assistance and the supplemental amount of $142.20 per month because of his disabilities. The Department agreed to begin providing such assistance as soon as possible after the partial agreement was signed on December 9, 1999.

21) The Appellant, Ms. Bell, contests the Department's denial of adoption assistance retroactive to March 3, 1988, the date Tamiko Scott Bell's adoption was finalized. She argues that retroactive adoption assistance would be used to provide alternative learning opportunities for Tamiko to address his learning disabilities and tutor him so his academic level would be more commensurate with his age and that it is especially important that such assistance be used to help Tamiko learn to read.

CONCLUSIONS OF LAW

1) The undersigned has jurisdiction over the persons and subject matter herein under chapter 34.12 RCW and pursuant to federal policy interpretations of the Adoption Assistance and Child Welfare Act codified at Title IV­E of the federal Social Security Act, 42 U.S.C. 673. ACYF­PIQ­92­02; ACYF­PIQ­83­04.[4]

2) In order to address the issue of what assistance is available to Tamiko, it is necessary to understand the law under which his mother applied for assistance. In 1980, the Adoption Assistance and Child Welfare Act, Public Law (P.L.) 96­272, amended the Social Security Act and established a program of adoption assistance for "children with special needs." See 1980 U.S. Code Cong. and Adm. News, at 1448,1450. This legislation was intended to provide, for the first time, federal financial participation with states in a program of incentives and support for families to adopt certain children who could not be adopted without assistance because of a variety of specific factors or conditions. See PIQ 90­02. Federal Financial Participation (FFP) is available in the Title IV­E adoption assistance program for both ongoing adoption assistance payments and reimbursement for the nonrecurring expenses of adoption as well as medical assistance for the adopted child. The Act is now known as Title IV­E, the Federal Adoption Assistance Program, and is codified at 42 U.S.C. §673. After the hearing and partial settlement of this case, the only issue remaining is whether, and in what amount, Tamiko is eligible for adoption support for the period from his adoption to the date of his mother's application. The Department asserts as the sole basis of denial of assistance for this period the fact that Tamiko's mother failed to apply for support pre­adoption. The Department agrees that Tamiko is, in all other ways, an eligible child for the program.

3) The purpose of the Federal Adoption Assistance Program is to encourage and support the adoption of children who have "special needs" and to promote the "best interests of the child." Gruzinski v. Dept. of Public Welfare, 731 A.2d 246, 253 (1999). Under Title IV­E, the term "adoption assistance" means, literally, to assist the adoption of children with special needs. PIQ 90­02. The federal policy makers have explained that assisting in the adoption of such children is not only beneficial for the children and enriching for families, but are also cost beneficial to state agencies in that administrative costs in the adoption assistance program can be far less than in the foster care program. PIQ 90­02. Federal regulations require that the state agency "actively seek ways to promote the adoption assistance program." 45 C.F.R. §1356.40(f). Similarly, the State of Washington, through DSHS, is required to actively seek and make maximum use of federal funds as are or may be made available to the department for the purpose of supporting the adoption of hard to place children. RCW 74.13.106. The policy of Washington State is as follows:

[T]o encourage, within the limits of available funds, the adoption of certain hard to place children in order to make it possible for children living in, or likely to be placed in, foster homes or institutions to benefit from the stability and security of permanent homes in which such children can receive continuous parental care, guidance, protection, and love and to reduce the number of such children who must be placed or remain in foster homes or institutions until they become adults.

RCW 74.13.100; see also, in re Welfare of Ott v. State of Washington, 37 Wn. App. 234, 239, 679 P.2d 372 (1984).

4) To be eligible for ongoing adoption assistance payments under federal Title IV­E, a child must be eligible for Aid to Families with Dependent Children, Title IV­E Foster Care, or Supplemental Security Income for the Blind and Disabled. 42 U.S.C. §673(a). Additionally, the child must meet the definition of a child with special needs according to section 673(c) of the Act. Under that section, the State Title IV­E agency makes a determination as to whether a child is a child with special needs, according to the following factors: the child cannot or should not be returned to the home of the parents; there exists a specific factor or condition (such as the child's age, ethnic background, emotional, physical or mental handicap, or membership in a minority or sibling group) because of which it is reasonable to conclude that the child cannot be placed for adoption without providing adoption assistance; and, except where it would be against the best interests of the child, a reasonable, but unsuccessful, effort has been made to place the child without adoption assistance. PIQ 90­02. All parties agree that at the time of Tamiko's adoption, he met all these criteria.

5) The Federal Adoption Assistance Program requires that each state enter into adoption assistance agreements with the adoptive parents of children with special needs. 42 U.S.C. §673(a)(1)(A). Federal regulations require that an adoption assistance agreement be signed and in effect at the time of or prior to the final decree of adoption. 45 C.F.R. §1356.40(b)(1). However, because this strict pre­adoption application requirement resulted in extremely inequitable situations for many families, exceptions to this rule were created first by case law and then by federal policy interpretation. See e.g. Ferdinand v. Department for Children and their Families, 768 F. Supp. 401 (D.R.I 1991). The U.S. Department of Health and Human Services, Administration for Children, Youth and Families, Policy Interpretation Questions (PIQ)s 88­06 and 92­02) provide guidelines for a finding of "extenuating circumstances" that allow a state to grant adoption assistance to families who apply after the adoption has been finalized. "Extenuating circumstances" entitling a child to reconsideration of eligibility for adoption assistance includes the Department's "failure to advise adoptive parents of the availability of adoption assistance." PIQ 92­02; Gruzinski, 731 A.2d at 256 (1999)(citing PIQ 92­02). The state agency responsible for implementing the federal adoption support law has the duty to inform parents of the program. PIQ 92­02.

6) A PIQ (Policy Interpretation Question) is an authoritative interpretation of federal law issued by the U.S. Department of Health and Human Services' Administration on Children, Youth and Families (Children's Bureau). See response by Carol W. Williams, Associate Commissioner of the U.S. Department of Health and Human Services, Children's Bureau, to questions concerning the status of PIQs, April 5, 1996. The Children's Bureau is the division of the U.S. Department of Health and Human Services responsible for publishing federal interpretations pertaining to the Title IV­E Adoption Assistance Program. Id. All parties in this case properly agree that federal responses in PIQs interpreting the adoption assistance program apply in this case. See also, Gruzinski, 731 A.2d at 253 (recognizing that the purpose of all federal policy interpretations was to interpret existing federal law, the Pennsylvania Court required that its Children and Youth Services' agencies utilize all available federal policy interpretations if doing so would enable adopted children to benefit from this federally funded program).

7) In 1988, PIQ 88­06 explained that if adoptive parents were denied benefits and extenuating circumstances were present, then the adoptive parents could request a post­adoption fair hearing on adoption assistance. See PIQ 92­02,­issued June 25, 1992, citing 88­06, issued December 2, 1988. Question 3 of PIQ 92­02 asked whether grounds for a fair hearing exist if the state agency fails to notify or advise adoptive parents of the availability of adoption assistance for a child with special needs. Id. The response from the Children's Bureau was as follows:

The very purpose of the Title IV­E Adoption Assistance Program is to encourage the adoption of hard­to­place children. State notification to potential adoptive parents about its existence is an intrinsic part of the program and the incentive for adoption that was intended by Congress. Thus, notifying potential adoptive parents is the State agency's responsibility in its administration of the Title IV­E Adoption Assistance Program. Accordingly, the State agency's failure to notify the parents may be considered an "extenuating circumstance" which justifies a fair hearing.

The Department in this case correctly concedes that it did have a duty to inform Ms. Bell of the adoption assistance program and that it failed to do so. Therefore, the Department's failure to provide Ms. Bell information on the availability of adoption assistance constitutes an "extenuating circumstance" and an exception to the federal regulations at 45 C.F.R. § 1356.40(b)(1) requiring that the adoption assistance agreement be signed and in effect at the time of or prior to the final decree of adoption.

Once it has been determined that extenuating circumstances allow a post­adoption application and that the child is otherwise eligible for adoption assistance, both of which have been decided in this case, then the question becomes for what period of time may the child be eligible to receive adoption assistance.

8) In PIQ 92­02, the question was posed to the Children's Bureau:

After the legalization of an adoption, if a fair hearing determines that a child has been wrongly denied benefits under the title IV­E adoption assistance program, what is the earliest date from which assistance may be provided?

The Children's Bureau explained that generally the earliest date from which adoption assistance may be provided is from the time of the adoption decree for those children adopted on or before October 1, 1986, and from the date the child is placed in the adoptive home for later adoptions.[5] The PIQ then went on to explain the earliest date of assistance when the parent is allowed to seek assistance post­finalization, as in this case. PIQ 92­02 provides in relevant part as follows (emphasis added):

If a State chooses to pay adoption assistance retroactively from the earliest date of the child's eligibility in accordance with Federal and State statutes, regulations and policies, the State may claim Federal financial participation for this expenditure. For cases in which there was no signed adoption assistance agreement, the earliest date of eligibility would be that of the interlocutory or final decree for assistance provided before October 1, 1986, or placement in an adoptive home for assistance provided after October 1, 1986. States should sign a new agreement backdated to the earliest date of eligibility for the child.

While not mandating adoption assistance back to the date of adoption or placement, the federal law clearly makes federal funds available to states when such support is deemed appropriate for a particular child. There is no existing Washington law, statute or regulation, which gives any direct guidance on this issue. While the Department is currently in the process of writing and promulgating regulations on this issue, no current state law exists which controls this issue.[6]However, the Department is mandated by statute to make maximum use of federal child welfare dollars. State law on adoption assistance provides:

... The secretary [of DSHS] shall actively seek, where consistent with the policies and programs of the department, and shall make maximum use of, such federal funds as are or may be made available to the department for the purpose of supporting the adoption of hard to place children . ...

RCW 74.13.106 (Emphasis added.)

Additionally, WAC 388­70­510 provides in relevant part that:

Interpretation of the [adoption support] statute and the philosophy of the adoption support program shall emphasize a flexible approach to subsidized adoption, focusing on the welfare of the child; rules shall not be adversely applied to the child's welfare.

While the undersigned does not mandate any set amount of adoption assistance for Tamiko's benefit for the period of time from his adoption to the time his mother applied for assistance, neither federal nor state law prohibits such assistance. Conversely, to completely rule out and automatically deny any benefits after the date of an otherwise eligible child's adoption, because of late application which was not the fault of the parent, would contravene the explicit directives set forth in state law which mandate maximum use of federal funds for the adoption of special needs children and which mandate a flexible approach to subsidized adoption. The entire focus of the hearing mandated by PIQ­92­02 is to determine if there are extenuating circumstances which allow the inquiry into whether the child was eligible for assistance at the time of his adoption. In mandating the inquiry into retroactive eligibility, the federal policy linked retroactive eligibility to potential retroactive assistance. Here, the Department acknowledges that Tamiko was a special needs child and was eligible for assistance at the time he was adopted. Extenuating circumstances, specifically, the Department's failure to offer adoption assistance to Tamiko's mother, prevented Tamiko from receiving adoption assistance from the earliest date of his eligibility.

9. The Department argues that adoption support cannot be awarded for past periods because such support must only meet present needs. However, the record in this case shows that adoption support will address Tamiko's present needs. Additionally, under federal law, adoptive parents have discretion on how to allocate adoption support for their special needs children and future educational needs have been specifically approved as a use for adoption assistance by the federal policy statements. See PIQ 86­05; PIQ 90­02. All parties agree Tamiko had special needs prior to his adoption. His mother credibly testified that adoption assistance would have been used to provide services which Tamiko needed when he was younger and struggling in school. His current testing at the second or third grade level at the age of 14 and his inability to read support the conclusion that he needs a great deal of help if he is going to be an independent functioning adult. The date of his mother's learning of the program and applying for assistance does not mark the beginning of Tamiko's need for services. Tamiko's special educational and psychological needs have not been addressed as completely as they would have been had he had adoption assistance available to him since he was a young child. As found above, it took his mother years to convince the school district to pay for a complete neuropsychological evaluation which she believed was a prerequisite to addressing his substantial educational and development deficits. Hence, Tamiko has more needs for educational assistance than he would have had if adoption assistance had been available as it should have been.

10. Having determined that federal law specifically allows retroactive adoption assistance back to the date of a child's adoption when he was eligible at that time, and that nothing in Washington law prohibits such assistance, the issue­then becomes the amount of such assistance due to this child in this case. RCW 74.13.112 addresses the issue of the amount of adoption support and provides in relevant part:

The factors to be considered by the secretary in setting the amount of any payment or payments to be made pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145 and in adjusting standards hereunder shall include: The size of the family including the adoptive child, the usual living expenses of the family, the special needs of any family member including education needs, the family income, the family resources and plan for savings, the medical and hospitalization needs of the family, the family's means of purchasing or otherwise receiving such care, and any other expenses likely to be needed by the child to be adopted. In setting the amount of any initial payment made pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145, the secretary is authorized to establish maximum payment amounts that are reasonable and allow permanency planning goals related to adoption of children under RCW 13.34.145 to be achieved at the earliest possible date. The amounts paid for the support of a child pursuant to RCW 26.33.320 and 74.13.100 through 74.13.145 may vary from family to family and from year to year. Due to changes in economic circumstances or the needs of the child such payments may be discontinued and later resumed.

See also, WAC 388­70­560. The federal Adoption Assistance and Child Welfare Act provides that:

The amount of the payments to be made in any case under . . . [an adoption assistance agreement between a State and adoptive parents] 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. However, in no case may the amount of the adoption assistance payment made under . . . [the agreement] exceed the foster care maintenance payment which would have been paid during the period if the child with respect to whom the adoption assistance payment is made had been in a foster family home. 42 U.S.C. 673(a)(3)(Emphasis added.)

This language has been interpreted to pertain to the parents' ability to incorporate the child into their household in relation to the family lifestyle, standard of living, and future plans and to their overall capacity to meet the immediate and future needs (including educational needs) of the child. PIQ 90­02. The amount of adoption assistance payment is not based on a standard schedule of itemized needs and countable income. Instead, it is determined through a discussion and negotiation process between the adoptive parents and a representative of the state agency. The federal law clearly requires that the needs of the child and the circumstances of the adopting parent be considered during that negotiation and the state statute cited above further defines those circumstances and needs. The payment which is agreed upon will, therefore, be expected to combine with the parent's resources to cover the ordinary and special needs of the child projected over an extended period of time. PIQ 86­05. In the usual event where adoption assistance is negotiated at the time of the adoption, the discussion will revolve around anticipated future needs of the special needs child; whereas in a case where adoption assistance is granted retrospectively for a disabled child, such as this case, the department and parent have the assistance of hindsight and the more specific needs of the more mature child.

While both inquiries are difficult, one is no more impossible than the other. For example, it is known what Tamiko's educational deficits are and that further testing may be needed to develop a plan to meet his special needs. It remains to be seen which of his needs can realistically be met through the school system, given the fact of how far behind his age group he is, and what tutoring, testing, and counseling will be necessary in addition to what is available through the school system. The entire scheme of the law is that adoption assistance agreements are developed for individual situations. If agreement cannot be reached between the agency and the adoptive parent, the parent has the right to request a fair hearing. PIQ 90­02; see also WAC 388­70­580(b).

As the above law demonstrates, it would run afoul of the federal and state law for the undersigned to set the amount of adoption assistance that should be afforded to Tamiko at this point in time. Therefore, the case is remanded to the Department for negotiation of the amount of support assistance for the period from the date of Tamiko's adoption on March 3, 1988, until the date that the settlement agreement begins on October 1, 1997.

DECISION

Extenuating circumstances exist to allow the Appellant to submit a post­adoption application for adoption assistance for her adopted child under Title IV­E of the federal Social Security Act. Tamiko Scott Bell was eligible for adoption assistance at the time of his adoption. The parties have agreed to and signed a settlement agreement (which has been signed by the undersigned) which provides that the Appellant is eligible to receive adoption support, from October 1, 1997, until his eligibility ceases under federal and state law, in the amount of $586.49 per month. Tamiko's adoptive mother and the Department should negotiate the amount of adoption assistance for the period from the date of his adoption on March 3, 1988, until the date the settlement order took effect on October 1, 1997. The case is therefore remanded for that determination.

ENTERED at Olympia, Washington, on the date of mailing.

Nan Thomas

Administrative Law Judge

Office of Administrative Hearings

cc: Mari S. Bell, Appellant

Lois Chowen, DCFS, Program Manager

Shirley Gantzer, Department Representative

Timothy P. O'Hanlon, Appellant Representative

NOTICE TO PARTIES: THIS ORDER BECOMES FINAL ON THE DATE OF MAILING UNLESS WITHIN 21 DAYS OF MAILING OF THIS DECISION A PETITION FOR REVIEW IS RECEIVED BY THE DSHS BOARD OF APPEALS, PO BOX 45803, OLYMPIA, WA 98504­5803. A PETITION FORM AND INSTRUCTIONS ARE ENCLOSED.

FOOTNOTES:

1 The parties use the terms "adoption assistance" and "adoption support" interchangeably. Both terms are used in federal and state law. 42 U.S.C. §673 (Title 42, Chapter 7, Subchapter IV, Part E­ Adoption Assistance Program), 45 C.F.R. §1356.40 (Requirements Applicable to Title IV­E); RCW 74.13.100 through 74.13.145.

2 The Commonwealth Court of Pennsylvania has noted that Tim O'Hanlon is "an expert who was involved in adoption services in Ohio and who has written a book on the subject of adoption assistance." Gruzinski v. Department of Public Welfare, 731 A.2d 246, 250, fn. 10 (1999).

3 Anoxia is defined as "absence or almost complete absence of oxygen from inspired gases, arterial blood, or tissues." Stedman's Medical Dictionary, 261" Edition, pg. 95.

4 45 CFR 1355.30 provides that procedures and requirements for hearings under 45 CFR 205.10 apply to all programs funded under Title IV­E of the Social Security Act. PIQ 83­04. The federal adoption assistance program at issue in this case is a Title IV­E program. 42 U.S.C. 673. When a parent has not applied for adoption assistance under the federal law prior to the finalization of a child's adoption because the State agency failed to notify the parents of the availability of adoption assistance for a special needs child, then a fair hearing must be held to determine if extenuating circumstances exist so application can be made post­adoption. ACF­PIQ 92­02. PIQs are Policy Interpretation Questionnaires issued by the Department of Health and Human Services (DHHS) to answer questions arising in special needs adoption cases falling under Title IV­E of the Social Security Act. See conclusion of law number 6 for the legal significance of a PIQ.

5 Because Tamiko was adopted after 1986, Ms. Bell could have requested adoption assistance from the time of his placement. She instead requested assistance from the later date of when she adopted him, March 3, 1988.

6 Procedurally, there is no impediment to payments back to the date of eligibility. As noted in footnote 4, federal hearing rights of 45 C.F.R. 205.10 apply to this proceeding. Those rules provide that "When the hearing decision is favorable to the claimant, or when the agency decides in favor of the claimant prior to the hearing, the agency shall promptly make corrective payments retroactively to the date the incorrect action was taken."